MZWHN v Minister for Immigration - [2005] FMCA 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWHN v MINISTER FOR IMMIGRATION

[2005] FMCA 201

MIGRATION – Protection Visa – whether abuse of process – second application after order nisi remitted from High Court refused and appeal dismissed.

Abebe v The Commonwealth Re Minister for Immigration and Multicultural Affairs [1999] HCA14 (14 April 1999)

Applicant:

MZWHN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 550 of 2004

Delivered on:

15 February 2005

Delivered at:

Melbourne

Hearing Date:

15 February 2005

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr S. Hay

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

The application filed 18 May 2004 as amended by the amended application filed 16 November 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 550 of 2004

MZWHN

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter, the applicant is a citizen of Sri Lanka who arrived in Australia on 26 December 1995. The background to this application is set out appropriately in the respondent's contentions of fact and law filed on 11 February 2005. It is sufficient for the present purposes to note that the application currently before this court was filed on 18 May 2004 and it was supported by an affidavit then sworn by the applicant on the same day. Since the filing of the application, the applicant has further filed an amended application and that occurred on 16 November 2004. With the amended application, the applicant also filed a document entitled ‘Applicant's Contentions of Fact and Law’.
It would appear that the amended application and the applicant's contentions of fact and law were not served upon the respondent. The respondent, quite properly, has not opposed the applicant relying upon those documents.
The respondent has relied upon a notice of motion filed 11 February 2005. That notice of motion, supported by an affidavit sworn by Tom Byra Mixie Mosby on 11 February 2005, seeks dismissal of this application and does so in brief terms on a number of alternative grounds. The most significant ground relied upon is effectively that this application could properly be regarded as an abuse of process. Although the notice of motion refers to a failure to comply with orders, it is clear to me, having referred to the amended application and the contentions of fact and law, that there has effectively been compliance with orders of a kind, in my view, sufficient to not justify dismissal of this application simply on that basis alone. Likewise, I do not consider it necessary for me to have regard to the other issues raised including extension of time and/or whether there has been an inordinate delay. It is sufficient for the present purposes that I consider what is agitated for and on behalf of the respondent, namely that there is not an arguable case, and as I understand it, the main thrust of the respondent's argument for summary dismissal is effectively that this application represents what might be described as an abuse of process, and I shall deal with that presently.
In the alternative, the respondent has submitted, that in any event, on the material before the court, including the amended application and the applicant's contentions of fact and law, there is no error identified of a kind which could properly be regarded as jurisdictional error, and the application should be dismissed.
It is appropriate to continue with the chronology which, as I have indicated, is set out adequately in the respondent's contentions of fact and law. The Applicant arrived in Australia on 26 December 1995. On 20 August 1997 the Applicant lodged an application for a protection visa with the respondent. A delegate of the respondent refused to grant the protection visa on 16 October 1997. This led the applicant to apply to the Refugee Review Tribunal, (the RRT), on

12 November 1997 for review of the delegate's decision.
The hearing was conducted before the RRT and the applicant gave oral evidence on 30 May 2000, and on 16 August 2000, the RRT affirmed the delegate's decision. On 22 May 2003, the applicant filed an application in the High Court of Australia seeking judicial review of the decision. I refer to this as the first application. The first application was remitted to the Federal Court by the High Court and then that court transferred the matter to the Federal Magistrates Court.
On 18 March 2004, I made orders in relation to that application which had been remitted from the High Court that the application for order nisi be refused, and made other orders in relation to the applicant paying the respondent's costs.
When this matter commenced this day, I brought to the attention of both parties the fact that I had already decided to refuse the application for order nisi on 18 March 2004. I was concerned then that I should now be in a position where I should proceed to consider this current application which, as I have indicated, was lodged on 18 May 2004 and which I shall describe as the second application. Neither party objected to my hearing this application, and it is clear that in my decision on 18 March 2004, I then considered issues, both specific and generic, to the application before the court concerning the order nisi and in particular I considered the issue of country information and other matters specifically relevant to the question of whether or not I should refuse the order nisi.
I am satisfied that in the present case it is appropriate for me to hear and determine the second application, notwithstanding the fact that I had dealt with the first application on 18 March 2004. It is clear to me that the second application does raise, or purports to raise, at least, issues that are of concern to the applicant which perhaps go beyond issues which were raised in the first application which I had already determined. It is relevant, however, whether the first application was determined by me or another Federal Magistrate to have regard to the fact that I had indeed disposed of the matter on 18 March 2004 and that it did relate to the same decision of the RRT. Hence whilst I am not automatically bound by the outcome of that case, I do regard it as relevant to the present application and particularly relevant to the notice of motion where in part it is claimed that this application, that is the second application, is an abuse of process.
In any event, to continue the chronology, it would appear that after I had made the decision on 18 March 2004 and published my reasons, the applicant then applied for leave to appeal that decision, and did so on 23 March 2004.
His Honour Gray J refused leave to appeal on 22 April 2004 and gave reasons for that refusal. The reasons for my decision, together with the reasons for His Honour Gray J's decision appear in the court book.
It was then that the applicant on 18 May 2004 lodged what may be described as the second application. It is submitted on behalf of the respondent that the second application does not disclose any error of a kind which might properly be described as jurisdictional error. In any event, it is further submitted that this proceeding amounts to an abuse of process and should be dismissed, as it appears in substance to be seeking a review of a decision which has already been the subject of the decision to which I have referred which had been remitted from the High Court.
It seems to me that the chronology of events clearly establishes that this is in fact an abuse of process. Where an application is made to the High Court, and a choice made to pursue that venue and the matter remitted as described, and issues then agitated are considered by this court, to then issue a second application without there being any substantive additional material, in my view clearly constitutes an abuse of process. On that ground alone I am satisfied that it would be appropriate for the application to be dismissed.
If I am wrong about that, then it is clear to me on a proper reading of the applicant's amended application and contentions of fact and law that what is sought to be agitated is an issue which I have no doubt is genuinely felt by the applicant to be one where she challenges the findings of the RRT and asserts that the facts as found by the RRT were incorrect. For example, in the amended application, reference is made to the RRT reaching conclusions about the applicant exaggerating the extent to which she was involved in United National Party (UNP) activities. In the contentions of fact and law, reference is made to the RRT being wrong when it claimed it rejected the evidence of the applicant that she was threatened by the Janatha Vimukthi Peramuna and that her home was destroyed by the JVP after the 1994 general election.
It is clear to me on a proper reading of the RRT's decision that it has properly taken into account the matters raised by the applicant, and considered the issues specifically raised by her in support of the application. In its reasons, it is obvious to me from the proper reading that the RRT disbelieved the applicant about a number of what I would describe as threshold issues which otherwise would support a claim for a protection visa. It is not necessary for me to recite in detail extracts from the RRT decision, but it is sufficient to note that on a number of occasions the applicant's assertions were rejected.
The rejection of the applicant's assertions was part of a fact finding mission of the RRT, and on my reading of its decision, I cannot detect any jurisdictional error of a kind which would attract judicial review of this decision.
It was noted by counsel for the respondent that the applicant in her contentions of fact and law has relied upon and cited an extract from the High Court decision in the matter of Abebe v The Commonwealth’ Re Minister for Immigration and Multicultural Affairs [1999] HCA 14 (14 April 1999). But specifically, the applicant refers to the following extract where the court states:
“The fact that an applicant for refugee status may yield to temptation to embroider an account of his or her story is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”.
I accept as a matter of principle that this court, and indeed the RRT, should have regard to that extract in the High Court decision, and indeed other authorities which have been referred to by the Applicant. However, merely referring to that as a matter of principle does not of itself provide a sufficient basis upon which this court should exercise its discretion and find there has been jurisdictional error of a kind that would attract judicial review in the absence of further particulars which might otherwise encourage the court to adopt that course. In the present application, as I have indicated, I am satisfied that in its fact finding mission the RRT has had proper regard to its role in considering and analysing the material placed before it by the applicant.
In the circumstances, it is clear to me, for the reasons given, that it is appropriate that the application be dismissed with costs on the ground that it is an abuse of process and/or in any event that I am satisfied that in this application there is no jurisdictional error of a kind which would attract judicial review.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 15 February 2005