MZXFA v Minister for Immigration - [2006] FMCA 245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXFA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 245

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Federal Magistrates Court Rules 2001– leave granted to make application for summary dismissal – whether summary dismissal more appropriate for interlocutory order pursuant to ‘show cause’ procedure under Rule 44.12 – not appropriate to permit application to set aside ‘interlocutory’ order pursuant to Rule 16.05 - vexatious litigant – Rule 13.11.

Federal Magistrates Court Amendment Rules 2005 (No. 1), rr.44.05, 44.11(a), 44.11(c), 44.12, 44.12(1)(a), 44.12(2)
Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 13.11(1), 16.05(2)(c) Federal Magistrates Court Act 1999, s.17A
Migration Act 1958, sub-s.486D(1)

Applicant M143 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1536
Applicant M143 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 100
Dey v Victorian Railways Commissioners (1948) 78 CLR 62

First Applicant:

MZXFA

Second Applicant:

MZXFB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1542 of 2005

Judgment of:

McInnis FM

Hearing date:

15 February 2006

Delivered at:

Melbourne

Delivered on:

15 February 2006

REPRESENTATION

Applicants:

In person

Counsel for the Respondents:

Ms E. Arduca

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

So much of the rules of the Court be dispensed with pursuant to r.1.06 of the Federal Magistrates Court Rules2001 (“the Rules”) that would otherwise prevent the First Respondent from being granted leave to make application pursuant to r.13.10 and r.13.11 of the Rules and for those applications to be heard and determined this day.
The First Respondent shall be granted leave to make oral application this day for summary dismissal pursuant to r.13.10 of the Rules and for an order to be made pursuant to r.13.11 of the Rules.
The application filed on 1 December 2005 be dismissed pursuant to r.13.10 of the Rules.
Pursuant to r.13.11(1)(b) of the Rules the Applicants shall not institute a proceeding in relation to the Refugee Review Tribunal decision dated 27 April 1998 without leave of the Court.
The Applicants shall pay the First Respondent's costs fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1542 of 2005

MZXFA

First Applicant

MZXFB

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

In this application the Applicants seek review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application was filed on 1 December 2005 and purports to be in the form required by r.44.05 the Federal Magistrates Court Amendment Rules 2005 (No. 1). Rule 44.05 requires an application to be made in the form set out in Part 1 of Schedule 2 and provides:
“44.05 Application for order to show cause
(1)an application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2) An application must be supported by an affidavit including:
(a)a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b)any document or other evidence the applicant seeks to rely on; and
(c)if an extension of time is sought – the reasons for any delay and the reasons why an extension should be granted.”
The application is supported by an affidavit of one of the Applicants, making clear that the application seeks to set aside a decision of the Tribunal dated 27 April 1998. The First applicant, who appears unrepresented, has clarified what appears to be an error in the decision details incorporated in the application. Those details refer to a date of decision of 19 October 2005 and notification of a decision received on 23 November 2005. Reference is made in the “decision details” in the application to a Member of Parliament. It appears from the First Applicant that those dates in fact refer to correspondence from a Member of Parliament who had responded to a request apparently by the Applicants for the matter to be given further consideration by the Department. It is clear that the “decision details” are inaccurate and that this Court would not have power to review a decision relating to correspondence from a Member of Parliament to the Applicants. I am further satisfied the affidavit at least clearly refers to the application being one whereby the Applicants seek to set aside the decision of the Tribunal dated 27 April 1998.
The First Respondent, by a response filed on 16 December 2005, seeks ‘final’ Orders which for reasons that I shall presently explain, would appear to be a misdescription. In any event, the Orders sought are set out in the response as follows:
“1. The application be dismissed pursuant to Rules 44.06 and 44.12 on the basis that the application is out of time and there the Applicants have had prior judicial review in respect of the decision of the Refugee Review Tribunal dated 27 April 1998.
2. The Applicants pay the costs of the respondent pursuant to Rule 44.15 and Schedule 1, Part 2 of the Federal Magistrates Court Rules 2001.”
The response is supported by an affidavit sworn by Elena Iolanda Arduca on 16 December 2005. Before considering the proceedings and the remedy sought it is appropriate, relying upon the affidavit of Ms Arduca, to set out the background material which I regard as relevant in considering this application at a first court date.
The Applicants are nationals of the Philippines who arrived in Australia on a tourist visa on 21 June 1984. An application was made for a protection visa by the Applicants on 16 May 1997. That application was refused by a delegate of the First Respondent on 25 September 1997. On 20 October 1997 the Applicants sought review of that decision by the Tribunal. In its decision dated 27 April 1998 the Tribunal affirmed the delegate's decision to refuse to grant to the Applicants a protection visa.
It is sufficient to note that in its decision the Tribunal referred to the basis of the Applicant's claim being political activity against the then President Marcos. Although no longer in power, it was argued a number of his "cronies" still hold important positions and human rights abuses are still commonplace. The Tribunal made adverse credibility findings against the Applicants and ultimately concluded that the Applicant, his wife and child, who are the Applicants, do not face a real chance of persecution in the Philippines at the present time or in the foreseeable future for any convention reason or reasons and therefore do not have a well-founded convention-related fear of persecution.
That decision of the Tribunal was subject to what appears to be an application by the Applicants in the High Court of Australia who had joined what has been described as the Muin Lie class action. They did that on 10 December 1999. Directions were made by the High Court and on 22 May 2003 that the Applicants file and serve a formal application for order nisi in the High Court seeking writs of prohibition and certiorari in relation to the Tribunal decision. That application was remitted to the Federal Court of Australia.
On 5 December 2003 Merkel J of the Federal Court dismissed the application (see Applicant M143 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1536). After considering the matter and specifically referring to the Tribunal decision, his Honour stated the following:
“4 On the substantive issues I have carefully perused the decision and cannot discern any error that would justify judicial review by this Court…”
The decision of Merkel J was then the subject of a notice of appeal and application for leave to appeal filed in the Full Court of the Federal Court of Australia on 19 December 2003. On 7 May 2004 the Full Court of the Federal Court refused the Applicant's application for extension of time and for leave to appeal and made a consequential costs order.
The Full Court decision dated 7 May 2004 (see Applicant M143 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 100) referred again to the Tribunal's assessment together with the decision of the primary judge. The Full Court's decision considered the grounds of appeal and other material and ultimately concluded, in accepting submissions made to the primary judge by the Respondent summarised by the Full Court, that there was no arguable basis for the grant of judicial review.
After the decision of the Full Court the Applicants filed an application for review of the Tribunal decision on 21 May 2004 in the Federal Magistrates Court of Australia. On 11 November 2004 the First Respondent filed a motion for the summary dismissal of the application. Presumably that application for summary dismissal was filed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”).
On 30 November 2004 the Federal Magistrates Court made Orders dismissing the application filed 21 May 2004 and further made an order in relation to costs. It is noteworthy that at that time the Court made the following further order:
“3. The applicant not commence further proceedings in relation to the Refugee Review Tribunal decision without leave of the court.”
The further Order made by the Federal Magistrates Court does not purport to be made pursuant to r.13.11 of the Rules which provides for the Court to be satisfied that a person has instituted a vexatious proceeding and provides:
“13.11      Vexatious litigants
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted order vexatious proceeding in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2)    An order under subrule (1) may be made:
(a)    on the Court’s own motion; or
(b)on the application of the Attorney-General or Solicitor – General of the Commonwealth or of a State or Territory;
(c)     on the application of the Registrar.
(3)If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a)that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b)that the vexatious litigant may not institute any proceedings agains the person aggrieved without the leave of the Court.
(4)A person seeking an order under this rule must file an application.
(5)The Court may rescind or vary any order made under this rule.
(6)The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.”
Hence it would seem that the Court purported to rely on what could perhaps only be described as an inherent jurisdiction to make that Order. In any event, no leave was sought in filing the application currently before this Court. Though it is not necessary to consider in detail the power this Court may have in relation to that type of order, it is my view that where the Court Rules provide for an express power to deny the person the opportunity of instituting a proceeding without leave of the Court, then that express power should be exercised, and I am not satisfied that this Court necessarily has any inherent power to then make an Order independent of r.13.11.
In the Applicant's affidavit in support of the application before this Court, the applicant states the following:
“1. I request the court to set aside the decision of the RRT dated April 1998 because the decision was wrong.
2. I believe that the Tribunal did not consider my case properly in accordance with the refugee laws.
3. The tribunal failed to follow the proper procedure and refused my case. This was a breach of natural justice law.”
The representative of the First Respondent, whilst initially pursuing as indicated in the response dismissal pursuant to r.44.12(1)(a), has subsequently sought leave of the Court to make application this day for summary dismissal pursuant to r.13.10 and to further seek an Order pursuant to r.13.11 of the Rules and otherwise seek an Order that so much of the rules be dispensed with that would prevent those applications being heard and determined this day.
It is clear to me that the procedure now sought to be followed, of seeking summary dismissal combined with the application for an Order pursuant to r.13.11 of the Rules, is the appropriate course to follow for reasons which will become apparent.
First, in my view it is at the very least arguable that summary dismissal under r.13.10, unlike dismissal under r.44.12, becomes a final order. Clearly any dismissal under r.44.12 is expressly referred to as being an ‘interlocutory order’. So much is evident from r.44.12(2) which provides:
“44.12
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
It is clear to me that the new rules appear to contemplate a first court date which may be returnable before a Federal Magistrate who then may, as in this instance, proceed to an immediate hearing under r.44.12 (see Rule 44.11(a)). The Court also has power at a first court date to dispense with a hearing under r.44.12 and list the matter for final hearing on the grounds set out in the application (see r.44.11(c)). In my view, neither course is appropriate in this instance where, on the history as set out earlier in this judgment, it is abundantly clear to me that this is an application which should be summarily dismissed, albeit that there has been an earlier order for summary dismissal.
The First Respondent in the response sought to refer to r.44.06 of the Rules and rely upon grounds that there are "other judicial review proceedings in relation to the decision” and that the Applicant had not complied with sub-s.486D(1) of the Migration Act 1958 (“the Act”).
Rule 44.06 provides:
“Response to application
(1)Each respondent who intends to oppose an application must file and serve a response, including e4ach ground on which the respondent opposes the application and details of each ground.
(2)For subrule (1), the grounds on which a respondent may oppose an application include the following:
(a)that the Court lacks jurisdiction to hear the application;
(b) delay in seeking the remedy;
(c)that there are, or have been, other judicial review proceedings in relation to the decision;
(d)that the applicant has not complied with subsection 486D(1) of the Migration Act.”
Section 486(D)(1) provides:
“MIGRATION ACT 1958 - SECT 486D
Disclosing other judicial review proceedings
(1) A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.”
The principles of summary dismissal were referred to by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 91 as follows:
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
In my view, the proper course for the Court in the present case is to summarily dismiss the application. The chronology of Court proceedings together with the lack of merit leads me to conclude that this is a clear case which justifies summary intervention of the Court. I note the Court is now not bound to decide the proceeding is hopeless or bound to fail in determining whether it has no reasonable prospect of success (see s.17A of the Federal Magistrates Court Act 1999). Though in this case I still regard the principles of the High Court in ‘Dey v Victorian Railways Commissioner’ as being applicable not withstanding that statutory provision as I find there is no reasonable prospect of success and given the history of the matter no real question to be determined. The Applicant has simply sought to argue yet again that the Tribunal decision was wrong or that it did not consider the case properly, failure to follow proper procedures or breach natural justice without providing any proper particulars in any event this argument have been heard and determined by other Court’s as indicated earlier in this judgment.
As indicated the history of the proceedings, the lack of any further particularity of the claim now sought to be pursued clearly enables this Court to conclude that the doctrine of res judicata applies and/or this application is frivolous or vexatious and/or it is an abuse of process. This is indeed what I would regard as a very clear case to justify summary dismissal. It is preferable to make an order for summary dismissal in matters of this kind as at least it is arguable that is a final order.
An order made under the new r.44.12 is an interlocutory order. As an ‘interlocutory’ order it then provides an option under r.16.05(2)(c) of the Rules for the Court to set aside that order given it is described as an ‘interlocutory’ order. That opportunity, in my view, in a matter of this kind is not appropriate. It would be undesirable for litigation, given the history of this matter, to be pursued any further in this Court.
I am also further satisfied that it is appropriate, in granting leave to the First Respondent to make an oral application this day pursuant to r.13.10 and r.13.11 and to otherwise dispense with compliance with the rules to the extent that they would otherwise prevent the application being heard and determined today. It is in the interests of justice to do so. There must come a time when some finality is reached in relation to applications of this kind which, as I have indicated, I find is clearly a case of an abuse of process.
On the history before me that I am satisfied in this instance that the Applicants as a result of the proceedings referred to earlier in this judgment have habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court. In this case, the other vexatious proceeding in my view is the earlier proceeding which was commenced in the Federal Magistrates Court. That in my view is sufficient to provide me with the basis upon which I can be satisfied pursuant to r.13.11(1) of the Rules.

Accordingly I make the following orders:-
So much of the rules of the Court be dispensed with pursuant to r.1.06 of the Federal Magistrates Court Rules2001 (“the Rules”) that would otherwise prevent the First Respondent from being granted leave to make application pursuant to r.13.10 and r.13.11 of the Rules and for those applications to be heard and determined this day.
The First Respondent shall be granted leave to make oral application this day for summary dismissal pursuant to r.13.10 of the Rules and for an order to be made pursuant to r.13.11 of the Rules.
The application filed on 1 December 2005 be dismissed pursuant to r.13.10 of the Rules.
Pursuant to r.13.11(1)(b) of the Rules the Applicants shall not institute a proceeding in relation to the Refugee Review Tribunal decision dated 27 April 1998 without leave of the Court.
The Applicants shall pay the First Respondent's costs fixed in the sum of $1,500.00.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 15 February 2006