NAFG and Minister for Immigration and Anor
[2006] FMCA 523
•15 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAFG & MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 523 |
| MIGRATION – Application for summary dismissal – application an abuse of process – applicant’s claims dealt with in prior proceedings before Federal Magistrates Court of Australia, Federal Court of Australia and High Court of Australia – applicant not to institute further proceeding with out leave pursuant to r. 13.11(3)(b) of the Federal Magistrates Court Rules 2001. |
| NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 549 NAFG v Minister for Immigration (No.2) [2003] FMCA 558 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389 |
| Applicant: | NAFG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2794 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 March 2006 |
| Date of Last Submission: | 15 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2006 |
REPRESENTATION
| Applicant appearing for himself |
| Solicitor for the Respondent: | Mr B. Cramer, Blake Dawson Waldron |
ORDERS
The application filed is an abuse of process and accordingly the application is dismissed.
The Applicant, pursuant to r. 13.11(3)(b) of the Federal Magistrates Court Rules 2001 not be permitted without leave to institute any proceeding in this Court, seeking review of the decision handed down by the Refugee Review Tribunal on 26 November 2002.
The Applicant pay the First Respondent's costs in an amount of $3950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2794 of 2005
| NAFG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks orders, pursuant to a notice of motion filed on 13 February 2006, that the application filed in this Court by the applicant on 30 September 2005 be dismissed on the basis that it is frivolous or vexatious, or otherwise an abuse of process.
The first respondent seeks a further order pursuant to r. 13.11(3)(b) of the Federal Magistrates Court Rules 2001 that the applicant not be permitted to institute any proceeding in this Court without leave that seeks review of the decision handed down by the Refugee Review Tribunal, on 26 November 2002, on the basis that the Applicant’s claims have been substantially dealt with in other proceedings in the Federal Magistrates Court of Australia, Federal Court of Australia and the High Court of Australia.
The first respondent relies and reads the affidavit of Ishan Fuad Muthalib, sworn 10 February 2006, which annexes a comprehensive history of the matter.
It is relevant for the purposes of the application that I go through the history of the matter in the light of the application presently before the Court, being that filed on 30 September 2005.
That application filed 30 September 2005, identifies the following grounds at page 2:
1. “The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considering of the oral evidence regarding my persecution.”
2. “The Tribunal denied the natural justice in determine my review application that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.”
3. ”The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.”
4. “The tribunal in its decision ‘findings and reason’ has harshly mentioned that I have no credibility that is the credibility problems. In fact the tribunal never checked the authenticity of my oral evidence. If it was then the tribunal should have given the opportunity to me to comment on. The tribunal itself also did not take any initiative to verify the authenticity of my documentary & oral evidences through the DFAT, Dhaka, Bangladesh.”
5. “The tribunal has denied the procedural fairness by ruling out my claim as fabricated without the proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision.”
6. “The tribunal did not use the country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal was preoccupied and did not have a fresh look. The tribunal also fail to consider the Amnesty International country information.”
“I refer recent High court decision SAAP v MIMIA [2005] HCAQ (sic) 24 (18 May 2005).
I refer SZFKL v MIMIA [2005] FCA 931 for the Refugee Review Tribunal be joined as party to the proceedings.
I also refer High Court case Plaintiff S157/2002 V Commonwealth of Australia. This decision will be examined in three respects implications affecting jurisdiction, time limits and jurisdictional error. Making sense of the Rule of Law: Trends in the judicial Review of Migration Decisions Post S157/2002 V Commonwealth of Australia. By DR Mary Crock and Catherine Chang.”
There appears to be 6 grounds, none of which are either enumerated or particularised.
The first 3 grounds appear to be complaints that the applicant was denied natural justice; that the Tribunal was biased; that it exceeded its jurisdiction; that it denied the applicant procedural fairness by failing to investigate the applicant's claims; and that the Tribunal asked itself the wrong question in relation to the applicant's claims of persecution, and did not consider the oral evidence in relation to his claims.
Grounds 4 and 5 appear to canvass similar territory, but ground 4, in particular, makes a claim that the Tribunal failed to check the authenticity of oral evidence, and took no steps to verify documentary and oral evidence provided to it.
Ground 6 appears to be a complaint that the Tribunal did not have regard, again, to other evidence that the applicant states was relevant.
On 9 December 2002, the applicant filed an application seeking review of a decision given by the Refugee Review Tribunal dated 31 October 2002. That application was filed in the Federal Court of Australia, and was subsequently transferred to the Federal Magistrates' Court of Australia on 6 February 2003. That application is in the following terms:
“1. I am seeking a review of the RRT decision dated 31/10/2002 under concerned section (error of Law) of the Migration Act. I received the decision dated 26/11/02. I am lodging this application under section 39(B) Judiciary Act 1903.
2. I am a genuine Refugee applicant in accordance with the United Nations Conventions 1951 and 1967 protocol related to the status of Refugee. I am not satisfied with the RRT decision and the decision is bared by the Refugee Conventions & protocol and the Migration Act 1958. May I please your honor to accept my application and returned me a favourable Judgement for the ends of Justice.
3. I was deprived to fully present my case to the Tribunal.
4. The Tribunal failed to act according to substantial justice and the merits of the case were ignored by the Refugee Review Tribunal member.
5. I am not satisfied with the RRT Member’s Comments regarding my real chance of persecution under the present ruling of BJP government in India.”
Again, they are general claims that are unparticularised, and which I do not find to be in any significant way different from those in the current application before the Court. The applicant filed an affidavit sworn on 9 December 2002, and filed shortly thereafter which, again, is in the nature of general cavilling with the findings and conclusions of the Tribunal.
On 8 October 2003, the matter was listed for hearing before Barnes FM. The applicant failed to appear at the hearing, and Barnes FM dismissed the proceedings. It is relevant that, in dismissing the proceeding, Barnes FM considered that the applicant's case “does not appear to be a strong one.” (NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 549 (“NAFG”) at [5]) She noted that she had regard to the decision of the Tribunal and the nature of the application, and the very general complaints made by the applicant (NAFG at [5])
On 5 November 2003, the applicant filed an application in the Federal Magistrates' Court of Australia seeking to set aside the order of Barnes FM. On 27 November 2003, that application was heard by Barnes FM in the presence of the applicant, who sought to rely on illness as an explanation for his failure to appear at the first hearing.
In the course of considering her decision, Barnes FM properly had regard to the futility or otherwise of the applicant's application and concluded that, on the grounds as identified, she was not satisfied that the applicant had established an arguable case. She noted that there was nothing in the material before the Court to suggest that the Tribunal in any way denied the applicant procedural fairness, or that it failed to accord the applicant a fair hearing, or that it showed actual, or indeed apprehended bias (NAFG v Minister for Immigration (No.2) [2003] FMCA 558 (“NAFG (No.2)”). I refer to [13] and [14] of NAFG (No.2) which are as follows:
“13.The applicant was invited to attend a hearing to give evidence and did so on 25 October 2002. It is clear from the Tribunal reasons for decision that the Tribunal put to the applicant information it regarded as of significance for its decision, in particular regarding the results of recent elections in the Punjab which would suggest that the applicant no longer had reason to fear the BJP and Akali Dal because of his Congress Party affiliations.
The Tribunal gave the applicant an opportunity to deal with matters adverse to his interests that it was considering taking into account in exercising its power. It is clear from Tribunal reasons for decision that it did not accept that the applicant was targeted by members of political and religious groups because of his political affiliations but that even if his family had been persecuted in the past by political opponents as claimed, there had been change of government in the Punjab which overcame such concerns. Hence any fear was not well-founded.” (NAFG (No.2) at [13] and [14])
Barnes FM concluded, therefore, that there was nothing in the material before her to suggest that there was an arguable case that there was no denial of procedural fairness. She noted that no particular unfairness had been argued by the applicant, and that there was nothing to suggest he had been misled, or that his circumstances were in any way similar to those established by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”) (NAFG (No.2) at [15]).
Barnes FM also noted that the applicant did not suggest that he was not given an opportunity to address the Tribunal, or that he was in any way misled. (NAFG (No.2) at [16]). Barnes FM also notes that the material before her did not support any claim that the Tribunal failed to take into account relevant considerations, or comply with procedures under the Migration Act (NAFG (No.2) at [16]). Barnes FM then dismissed the application.
On 17 December 2003, the applicant filed a notice of appeal in the Federal Court of Australia in respect of the decision of Barnes FM.
On 31 March 2004, Jacobson J dismissed that appeal, and concluded that Federal Magistrate Barnes was correct in finding that there was no arguable case before her (NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389). Jacobson J also noted that, in relation to one of the applicant’s ground, it was not for the Tribunal to ask the appellant for evidence or for verification, and that such a complaint was contrary to authority (NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389 at [11]-[12]).
On 28 April 2004, the applicant filed an application for special leave from the decision of Jacobson J in the High Court of Australia. In the draft notice of appeal the applicant identified the following grounds:
“2. The judge of the Federal Court in his honors Judgement delivered on the 31 March 2004 failed to find error of law and relief under Section 39B of the judiciary Act. Their honor failed to find that the Refugee Review Tribunal has not find any evidence in relation to my claims and thus its decision is influenced by sufficient doubts.
3. The grounds and relief is very much similar with a recent High Court Judgment – Muin V Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for a visa – Review of decision by Refugee Review Tribunal – obligation of Secretary Department of Immigration & Multicultural Affairs to five relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (cth), ss148(3), 424(1).
4. Beside, the Refugee Review Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 26 November 2002 in deciding my protection visa review application. Thus the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.”
Those grounds are substantially the same as the issues considered before Barnes FM in NAFG .
On 9 November 2004, a Certificate of Deemed Abandonment was filed by the applicant. On 26 November 2004, the applicant filed a further application for special leave to appeal on similar grounds to the application filed in the High Court on 28 April 2004.
On 8 September 2005, Hayne and Callinan JJ dismissed the application for special leave, and noted that 3 complaints are made by the applicant about orders made in either the Courts below or the Tribunal; that the Tribunal had no evidence which supported its decision; that the Tribunal's decision was affected by errors that are currently identified in Muin; and that the Tribunal did not follow correct procedures. Their Honors concluded:
“In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the courts below, or in the Tribunal, which in any event, in each case, appears to us to have been entirely orthodox and untainted by any discernable error.”
Thereafter, the applicant filed the application before this Court on 30 September 2005 that is referred to above.
The first respondent submits that it is a fundamental principle of law of the need to achieve finality to litigation. Mr Cramer, on behalf of the first respondent, submitted that the applicant in filing his application on 30 September 2005, was essentially seeking to relitigate the same issues that the Courts referred to above have dealt with.
I have particular regard to the submissions of the first respondent in paragraphs 22, 23, and 24 of the respondent's outline of submissions filed on 13 March 2006, which are as follows:
“22. In Walton v Gardiner, Mason CJ and Deane and Dawson JJ said that:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foreshadowed to fail…Yet again, proceeding before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings”.
23. In Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, Wilcox J found that re-litigating the same application can be an abuse of process. His Honour observed that:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect. I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner…”
24. Similarly, in SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs, Madgwick J said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this ligation was put to an end…The proceedings, being groundless on their face, are an abuse of process.””
The application filed by the applicant on 30 September 2005 does no more than reagitate grounds that have been considered by at least three Courts. Barnes FM concluded that there was no arguable case in that there was no demonstrable error on the face of the Tribunal decision. Jacobson J confirmed those findings made by Barnes FM, and Hayne and Callinan JJ found that there was no discernible error on the face of the decision.
The first respondent further submitted to infer that the applicant was using these proceedings as an attempt to delay the consequences of the refusal to grant him a protection visa.
The first respondent relies on the similar nature of the grounds upon which the applicant relied in his various proceedings; the fact that at no stage were any of his grounds properly particularised; and that, indeed, the applicant had abandoned the first special leave application before the High Court.
There is no evidence before me from the applicant to meet such a contention, and in the circumstances, having regard to the conduct referred to by the first respondent, I do infer that the applicant was using these proceedings as an attempt to delay the consequences of the failure to grant him a protection visa. To that extent, I refer to paragraph 25 of the first respondent's outline of submissions, set out as follows:
“A proceeding is also an abuse of process if regardless of its merits or prospects of success, it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage beyond what the law offers: Second life Décor Pty Ltd v Comptroller-General of Customs. The respondent submits that it can be inferred from the history referred to above that the application has been made for the purposes of delay to extend the applicant’s period of lawful stay in Australia. Such an inference was drawn by the Court in NALE v MIMIA.”
In the circumstances, the application filed on 30 September 2005 is an abuse of process.
For the reasons already given and my finding that the proceedings are an abuse of process, I order that the applicant, pursuant to r. 13.11(3)(b) of the Federal Magistrates Court Rules 2001 not be permitted without leave to institute any proceeding in this Court, seeking review of the decision handed down by the Refugee Review Tribunal on 26 November 2002.
Accordingly, the application before this Court is dismissed.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in an amount of $3950.
RECORDED : NOT TRANSCRIBED
I note that such amount is in accordance with Schedule 1 of the costs of the Federal Magistrates Court Rules 2001. Accordingly, I am satisfied that the costs are reasonable.
ORDER DELIVERED
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A D’Addona
Date: 12 April 2006
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