NAAO v Minister for Immigration
[2004] FMCA 964
•13 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAAO v MINISTER FOR IMMIGRATION | [2004] FMCA 964 |
| MIGRATION – Review of the Refugee Review Tribunal decision – RRT decision the subject of earlier judicial review proceedings that were discontinued – present judicial review application competent but an abuse of process – application summarily dismissed. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.474, 477
| Applicant: | NAAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1377 of 2004 |
| Delivered on: | 13 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 December 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms K Bryant Sparke Helmore |
INTERLOCUTORY ORDERS
The Minister’s objection to competency is dismissed.
The application filed on 11 may 2004 is dismissed on the grounds that pursuant to part 13, rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), the proceedings are an abuse of the process of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the judicial review application, fixed in the sum of $2,000.
No further application by this applicant to review the decision of the Refugee Review Tribunal on 31 July 2002 and handed down on 21 August 2002 be accepted for filing in this Court, except by leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1377 of 2004
| NAAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency by the respondent Minister filed on 28 May 2004 as well as a motion for summary dismissal filed in court on 18 August 2004. The motion and the notice both relate to a judicial review application filed on 11 May 2004 which seeks review of a decision of the Refugee Review Tribunal (“the RRT”) made on 31 July 2002 and handed down on 21 August 2002. The Minister seeks the summary dismissal of the judicial review application on the basis that the Court has no jurisdiction to entertain it and also because the proceedings are said to be an abuse of process.
The Minister's motion and objection are resisted by the applicant for judicial review. The Minister's motion and objection are supported by an affidavit of Katie Jane Bryant filed on 25 August 2004. I received that affidavit into evidence. Ms Bryant also relied upon written submissions filed in my chambers on 24 November 2002. She and the applicant both made oral submissions.
Relevant background facts and circumstances are set out in paragraphs 5 to 11 of Ms Bryant's written submissions. I adopt those paragraphs for the purposes of this judgment by way of background:
The applicant, a citizen of Nepal, claimed that he was an active member of the Maoist affiliated All Nepal Independent Students Union (ANNISU) whom opposed the caste system. He claimed that he was detained on three occasions and that he feared he would be tortured or killed by the authorities on return to Nepal. The applicant also claimed that the Brahmin community ostracised him because of his views. [1]
[1] See affidavit of Katie Jane Bryant affirmed 25 August 2004 (‘Affidavit’), annexure ‘A’, pages 9 to10, 22 to 26
RRT’s findings
The RRT did not accept that that the applicant was a member of the ANNISU or involved in any Maoist activities because his evidence was inconsistent with the accepted independent country information. Accordingly, the RRT found that the applicant did not face a real chance of harm by the Nepalese authorities for reasons of his political opinion, actual or imputed.[2]
Whilst the RRT accepted that the applicant may have suffered some problems attending a temple and a religious festival, it found that this was not sufficiently serious so as to constitute persecution.[3]
The applicant’s first proceedings
On 16 September 2002, the applicant filed an application for judicial review in the Federal Court of Australia to review the RRT decision.[4] The applicant discontinued these proceedings on 15 November 2002.[5]
The applicant’s second proceedings
On 4 December 2002, the applicant’s former solicitor filed an affidavit annexing a draft order nisi in the High Court of Australia to review the RRT decision.[6] On 7 February 2003, the Honourable Justice Hayne remitted the proceedings to the Federal Court of Australia.[7] The proceedings were given the Federal Court number S302 of 2003.
On 23 June 2003, the Honourable Justice Selway made orders in Federal Court proceedings number S302 of 2003 for the future conduct of the matter.[8]
On 28 August 2003, the Honourable Justice Mansfield made orders in Federal Court proceedings number S302 of 2003 dismissing the application with costs because the applicant had not taken any steps in accordance with the orders made on 23 June 2003 by Justice Selway.[9]
The applicant’s third proceedings
On 11 May 2004 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the RRT decision.
[2] Affidavit, annexure ‘A’, pages 26 to 29
[3] Affidavit, annexure ‘A’, pages 29 to 30
[4] Affidavit, annexure ‘B’, pages 32 to 35
[5] Affidavit, annexure ‘C’, page 36
[6] Affidavit, annexure ‘D’, pages 37 to 69
[7] Affidavit, annexure ‘E’, pages 70 to 71
[8] Affidavit, annexure ‘F’, pages 72 to 73
[9] Affidavit, annexure ‘G’, page 74
I also adopt by way of background a chronology annexed to Ms Bryant's written submissions:
BACKGROUND 7 June 1977 Applicant born in Nepal 10 March 2001 Applicant arrived in Australia DIMIA 16 March 2001 Application for protection visa lodged 23 April 2001 Delegate’s decision to refuse protection visa RRT N01/38477 8 May 2001 Application for review lodged with RRT 18 July 2002 RRT hearing 31 July 2002 (21 August 2002) RRT decision made (handed down) FEDERAL COURT (Sydney) N958 16 September 2002 Applicant lodges application for judicial review 15 November 2002 Applicant discontinues HIGH COURT (Adelaide) No S302 of 2003 4 December 2002 Order nisi for a Writ of Mandamus, Writ of Prohibition and Writ of Certiorari filed in respect of decision of RRT made 31 July 2002
Applicant represented by Mark Clisby
7 February 2003 Orders of Hayne J remitting the matter to the Federal Court FEDERAL COURT No S302 of 2003 23 June 2003 Selway J makes several orders in relation to proceedings 28 August 2003 Mansfield J dismissed application for failure to comply with orders.
FEDERAL MAGISTRATES COURT SZ1377 of 2004 11 May 2004 Applicant files application for review 28 May 2004 Respondent files notice of objection to competency 18 August 2004 Directions hearing
Respondent files notice of motion25 August 2004 Respondent files affidavit of Katie Jane Bryant
The Minister's objection to competency depends upon a finding that the decision of the RRT is a privative clause decision within the meaning of ss.474 and 477 of the Migration Act 1958 (Cth) (“the Migration Act”). Ordinarily, that decision can only be made after a final hearing. Occasionally it will be apparent from earlier proceedings in respect of the same RRT decision that the RRT decision has been found to be a privative clause decision. That is not the case in this matter. There have been earlier proceedings both in the Federal Court and the High Court but in those proceedings no final decision was made. It does not appear that any pertinent observations were made by the Federal and High Courts bearing upon the question of whether the RRT decision is a privative clause decision.
In some cases it may be so obvious on the face of the decision itself that the decision is a privative clause decision that that finding can be made at an interlocutory stage. Again that is not the case in these proceedings. The decision of the RRT is quite long and complex. The presiding member covered a range of factors which appeared to be determinative of the outcome. This included the right of the applicant to relocate to India. The present judicial review application sets out six grounds which are not particularised. Hypothetically, if the grounds were particularised and supported by some evidence jurisdictional error might be established.
In the circumstances, I am unable to conclude in this interlocutory hearing that the decision of the RRT is a privative clause decision.
Accordingly, I dismiss the Minister's objection to competency.
As I have already noted the Minister's motion for summary dismissal relies upon asserted use of process. Ms Bryant deals with that issue in paragraphs 15 to 24 of her written submissions:
The respondent also moves on its notice of motion filed in Court at the directions hearing held on 18 August 2004.
For the reasons that follow, the current application is an abuse of the process of the Court and should be dismissed on this basis.
The repeated bringing of similar applications for judicial review of the same RRT decision amounts to an abuse of process. As outlined above, the applicant previously initiated proceedings in the Federal Court and then in the High Court in respect of the RRT decision that he now seeks to challenge in the Federal Magistrates Court. That is, this is the applicant’s third application judicial review of the same RRT decision. The applicant is seeking to litigate anew a matter that has already been disposed of on two former occasions.
When the applicant’s previous proceedings were dismissed, he waited over eight months before commencing action in this Court. The applicant has not offered any explanation for this delay. This unreasonable and unexplained delay also makes these proceedings an abuse of the process of the Court.
The application is also an abuse of process because it is unjustifiably vexatious and oppressive to the respondent. The Minister should not have to defend this RRT decision over and over again.
Allowing the proceedings to continue when the matter has already occupied the time and resources of the Federal Court and the High Court would bring the administration of justice into disrepute, which indicates abuse. In this regard, the Court ought to consider the underlying public interest that there be finality in litigation.
The current application suffers from the same vice as the application filed in the Federal Court in September 2002 and the draft order nisi filed in the High Court in December 2002. That is, they have all been devoid of particulars that might disclose some basis for the relief sought. These proceedings are groundless on their face and are an abuse of process for this reason.
Having regard to the applicant’s litigation history and his baseless applications, it is open to the Court to draw the inference that the applicant has initiated the present proceedings for the collateral purpose of extending his stay in Australia. Filing an application for an illegitimate purpose amounts to an abuse of process.
These proceedings are a clear abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the High Court and the Federal Court and that raise no arguable case.
If dismissed as an abuse of process, it is appropriate that the respondent obtain an order for costs and that those costs be paid on an indemnity basis.
The mere fact that there have been earlier judicial review proceedings in respect of the same RRT decision does not of itself establish an abuse of process. However, the present judicial review application suffers from the same vice as the original application to the Federal Court. The applicant told me that he instituted his initial proceedings in a Federal Court on legal advice and discontinued those proceedings on legal advice. Notwithstanding a warning from me, the applicant chose to disclose that advice. The advice apparently was that the applicant should discontinue as he had no chance of success.
On the face of the original judicial review application it is apparent that the applicant is essentially concerned with the merits of the RRT decision. That is also apparent on the face of the present judicial review application. The matters set out by the applicant under the heading “The Applicant Claims” in the application all go to the merits of the RRT decision. Although grounds of review are subsequently set out none of them are particularised. Those grounds are meaningless in the absence of particulars.
I asked the applicant what he thinks was wrong with the decision of the RRT. He told me that he is concerned that the presiding member formed an adverse view about the credibility of his claims of political persecution because of a misunderstanding. The presiding member on page 20 of the RRT reasons, in the last paragraph, identifies an exchange that apparently led to the adverse credibility view. The applicant told me that a confusion over party names led him to give a wrong answer to the presiding member's question. Whether or not that is the case, it does not point to any jurisdictional error.
The applicant is also concerned that he may be murdered if he returns to Nepal. He also told me that it was too risky for him to relocate to India. Those are also matters going to the merits of the RRT decision, not its validity. The applicant told me that his proceedings in the High Court, which were remitted to the Federal Court, were dismissed because of ineffective representation by the lawyers who then acted for him. It appears from what he told me from the bar table that the present proceedings were stimulated by a visit paid to his home by officers of the Minister's Department. Subsequently the applicant attended the Minister's Department and obtained a two week visa to permit him to leave the country.
I accept that the applicant genuinely does not wish to return to Nepal. He impressed me as an intelligent young man who, notwithstanding that he was assisted by an interpreter, was able to demonstrate a good command of the English language. He may have skills of value to this country that could support an application for a different category of visa. He also has an opportunity to ask the Minister to intervene to substitute a more favourable decision for that of the RRT. He told me that he has not to date exercised that opportunity.
I formed the view that the applicant's only concern with the decision of the RRT is with the merits of it. That is an issue that the applicant is unable to successfully pursue in this court. I formed the view, both from material in the affidavit of Katie Jane Bryant and also from what the applicant told me from the bar table, that the purpose of the present application before the Court is for the applicant to gain access to a bridging visa. Given that and given that the present application suffers from the same vice as the original application filed in the Federal Court two years ago, I find that the present application is an abuse of process.
I will therefore make the dismissal order sought in the Minister's motion because I have found the abuse of process. I will also order that no further application by this applicant to review the decision of the RRT made on 31 July 2002 and handed down on 21 August 2002 be accepted for filing in this court except by leave of the Court.
As to costs, I will not award costs on an indemnity basis. Although I found an abuse of process I note that the applicant is self‑represented and is unlikely to properly understand the subtleties of the jurisdiction of this Court. He is genuinely concerned about the merits of the decision of the RRT although he has not pursued the most appropriate avenue to deal with that concern. In his first legal proceedings in the Federal Court he acted on legal advice. The applicant was also legally represented in his second proceedings in the High Court and the Federal Court. I will award costs on a party/party basis. The Minister's total legal costs are of the order of $3,200. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the judicial review application, which I fix in the sum of $2,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 December 2004
1
0
0