NAIB v Minister for Immigration
[2008] FMCA 663
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 663 |
| MIGRATION – Practice and procedure – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10 – no reasonable cause of action – abuse of process – Anshun estoppel – applicant is a vexatious litigant under Rule 13.11(3). |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), s.417 Federal Magistrates Court Rules 2001, Rule 13.10, 13.11 |
| NAIB v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 354 NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 342 NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1594 NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 184 NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1124 NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1580 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 NAIB v Minister for Immigration & Anor [2006] FMCA 1124 Walton v Gardiner (1993) 112 ALR 289 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78 NALE v Minister for Immigration [2003] FMCA 366 Ramsey v Skyring [1999] FCA 907 |
| Applicant: | NAIB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 796 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 30 April 2008 |
| Date of last submission: | 30 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The first respondent’s application filed 17 April 2008 is upheld.
The application filed by the applicant on 4 April 2008 is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) on the ground that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; and pursuant to Rule 13.10(c) of the Rules on the ground that the proceeding or claim for relief is an abuse of process of the Court.
The applicant is a vexatious litigant within the meaning of Rule 13.11(3) of the Rules.
Any proceedings instituted by the applicant against the first respondent may not be continued without the leave of the Court pursuant to Rule 13.11(3)(a) of the Rules.
The applicant may not institute any proceedings against the first respondent without leave of the Court pursuant to Rule 13.11(3)(b) of the Rules.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,000 payable within three (3) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 796 of 2008
| NAIB |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an Application in a Case by the first respondent seeking orders pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) for summary dismissal of the applicant’s application (filed in the Federal Magistrates Court on 4 April 2008 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth)); and pursuant to Rule 13.11(3) that the applicant is a vexatious litigant against whom consequential orders should be made.
The applicant is seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 25 November 2002 and handed down on 18 December 2002, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The history of this matter is set out at paragraphs [4]-[9.1] of the affidavit of Katherine Nicole Hooper, affirmed on 16 April 2008 (the Hooper affidavit).
That history is also set out by Justice Kirby in his reasons for dismissing the applicant's second application for special leave to appeal to the High Court of Australia: NAIB v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 354 (a copy of which is at Annexure “G” to the Hooper affidavit).
The applicant is a Bangladeshi national, born on 4 February 1968.
The applicant arrived in Australia on 3 August 2000.
On 29 August 2000 the applicant lodged an application for a protection visa, claiming fear of persecution for his political beliefs if he returned to Bangladesh.
On 17 November 2000 the delegate refused to grant the applicant's protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the applicable law.
On 18 December 2000 the applicant applied to the Tribunal for review of the delegate's decision.
On 18 December 2002 the Tribunal handed down its decision, which affirmed the decision of the delegate refusing to grant a protection visa to the applicant (Tribunal reference number N00/36465).
On 13 January 2003 the applicant applied to the Federal Court for review of the Tribunal decision. The proceedings were transferred to the Federal Magistrates Court. On 31 July 2003, Raphael FM dismissed the application: NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 342.
The applicant then filed a notice of appeal in the Federal Court. On 16 December 2003, in NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1594, the Federal Court dismissed the appeal against the Federal Magistrate's decision, Hill J finding, at [6] that:
The Tribunal's decision was decided solely on the basis of the appellant's credit. Put simply the Tribunal did not believe what he said. There is no error to be ascertained in the Tribunal's reasons. Likewise, there is no error to be found in the reasons of the learned Federal Magistrate. Ultimately the appellant wished to engage in merits review and not judicial review. This Court, however, has no jurisdiction to undertake that nor did the learned Federal Magistrate have such a jurisdiction.
The applicant sought special leave to appeal to the High Court from the Federal Court judgment. On 6 April 2005, in NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 184 (a copy of which is at Annexure “D” to the Hooper affidavit) the grant of special leave was refused by Hayne and Callinan JJ.
On 27 April 2005, the applicant filed a second application in the Federal Magistrates Court seeking review of the Tribunal decision. On 2 August 2006 Barnes FM dismissed the application: NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1124.
The applicant then filed a notice of appeal in the Federal Court. On 2 November 2006, in NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1580, Black CJ dismissed the appeal from the decision of Barnes FM.
The applicant sought special leave to appeal to the High Court from the Federal Court judgment. On 1 August 2007, in NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2007] HCA Trans 354, (a copy of which is at Annexure “G” to the Hooper affidavit) the grant of special leave was refused by Kirby and Callinan JJ.
At some time during or after that appeal process the applicant applied to the Minister, seemingly pursuant to s.417 of the Act, seeking that the Minister substitute a decision that is more favourable to the applicant. The Minister refused this application (Applicant’s written submissions, filed in Court on 30 April 2008, at 1-2).
The proceedings before this Court
The first respondent filed the Application in a Case in this Court on 17 April 2008.
The applicant appeared in person before the Court on 30 April 2008 with the assistance of a Bengali interpreter. Ms Hooper appeared for the first respondent.
Orders sought in the Application in a Case
The orders sought by the first respondent in the Application in a Case are:
1. That the matter be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 in that:
· the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim; and
· the proceeding or claim for relief is frivolous or vexatious; and
· the proceeding or claim for relief is an abuse of the process of the Court.
2. That the applicant is a vexatious litigant within the meaning of Rule 13.11(3) and
· any proceedings instituted by the applicant against the person aggrieved (the first respondent) may not be continued without the leave of the Court; and
· the applicant may not institute any proceedings against the person aggrieved (the first respondent) without the leave of the Court.
3. In the alternative to Order 2 above, that the registry of the Court be directed that no further application for review of the decision of the Refugee Review tribunal signed on 25 November 2002 and handed down on 18 December 2002 (RRT reference number NOO/36465), or for review of the decision of the delegate of the first respondent dated 17 November 2000, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa lodged on 29 August 2000 shall be accepted for filing without prior leave of the Court.
4. That the applicant pay the first respondent's costs.
Rule 13.10 provides that:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Whether no reasonable cause of action
I consider that the Tribunal decision was a valid and final decision reviewing the delegate’s decision. That decision has been the subject of judicial review now on two prior occasions by each of the Federal Magistrates Court, the Federal Court and special leave applications to the High Court. No jurisdictional error has been found following careful judicial scrutiny on each of these occasions.
As relevantly observed by Hayne J on the first appeal to the High Court in 2005 (NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 184 at 2):
There is no reason to doubt the correctness of the reasons of or orders made by the Federal Court of Australia. An appeal to this Court would enjoy no prospect of success.
Also, as relevantly observed by Kirby J on the second appeal to the High Court in 2007 (NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2007] HCA Trans 354 at 3):
Substantially, as Barnes FM and Black CJ correctly found, this is an impermissible attempt by the applicant to relitigate matters that have already been fully canvassed and determined according with law. No basis has been shown to doubt the correctness of the conclusions to this effect by Barnes FM and Black CJ in the courts below. The application has no prospects of success in this Court. This second application for special leave must therefore be dismissed.
I also consider that the applicant is estopped from bringing any claims or grounds which were or could, by the exercise of reasonable care, have been previously raised, and which were or could have been decided in the previous proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356; Somanader v Minister for Immigration & Multicultural Affairs[2000] FCA 1192, NAIB v Minister for Immigration & Anor [2006] FMCA 1124 at [10]-[13]. I consider that no special circumstances exist in the current proceedings that would warrant the Court declining to apply the Anshun estoppel principles.
In regard to the affidavit of the applicant filed on 4 April 2008, I accept the submission of the first respondent that, in that affidavit:
the applicant has advanced no conceivable basis upon which to support his application and has provided no justification for commencing proceedings anew in the Federal Magistrates Court after the failure of his previous judicial review proceedings.
I have also considered the written submissions of the applicant filed in this Court on 30 April 2008, as well as his oral submissions to the Court. I consider that nothing in those submissions provides any justification for the applicant commencing anew proceedings in this Court.
For the reasons set out above, I consider, for the purposes of applying Rule 13.10(a), that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief by the applicant.
Whether abuse of process
I also consider, for the reasons set out below, and for the purposes of applying Rule 13.10(c), that the applicant's application of 4 April 2008 constitutes an abuse of the process of this Court.
In Walton v Gardiner (1993) 112 ALR 289, the High Court referred to the underlying public interest in the finality of litigation. The Court, at 298, also held that:
… proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … proceedings before a court should be stayed as an abuse of process if… 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.
Also, in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, the Full Federal Court, at [36] observed:
It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
I consider that the applicant's application of 4 April 2008 fits squarely within the description of a claim foredoomed to fail and one where the applicant is seeking to litigate anew a claim that has already been disposed of by a protracted history of earlier proceedings and in which all rights of appeal have been exhausted.
I consider that to allow the applicant to commence a third, and wholly unmeritorious, application before this Court would involve the resources of the community being expended in further litigation on a matter that has been now authoritatively and finally settled.
The Federal Court in Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, held (at 85), that:
…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.
The applicant stated in his affidavit of 4 April 2008 that:
I applied to the Federal Magistrates Court, Federal Court and High Court of Australia for judicial relief of the Tribunal decision.
The Courts made decisions dismissing my applications. (paragraphs 8-9)
At the Court hearing, the applicant further stated:
Your Honour, what happened is that what they have stated into the Court, I do realise that and I'm well aware of those things and I have gone through all the legal avenues … (transcript 20/4/08, p 7)
The applicant therefore is well aware that he has unsuccessfully sought all avenues of appeal from the decision of the Tribunal in relation to his application for a protection visa.
I consider that it is open to the Court to draw the inference, in all the circumstances, that the applicant has instituted the present third application to this Court in order to use the Court’s process purely for the collateral purpose of extending his period of stay in Australia.
I consider that this collateral purpose constitutes an abuse of the process of this Court (and see NALE v Minister for Immigration [2003] FMCA 366 at [12]).
The relevant legal principles, where repeated applications for review of a delegate’s decision are made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a third wholly unmeritorious application before this Court, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future (see below).
For the above reasons, I am satisfied that the present proceedings should be summarily dismissed under Rule 13.10 of the Rules.
Whether vexatious litigant
Rule 13.11(3) provides that:
Vexatious litigants
(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 proceeding against the person aggrieved without leave of the Court.
The first respondent submits in this regard that:
Having gone through the Federal Magistrates Court, Federal Court and applied for special leave to the High Court, twice, in circumstances where no reasonable grounds have been put forward, and where the Courts have persistently found the applicant's proceedings to be without merit, the applicant has now sought to continue this 'process' again by bringing vexatious proceedings against the respondents.
The test of whether a person, without any reasonable ground, institutes a vexatious proceeding is an objective one. In Ramsey v Skyring [1999] FCA 907, Sackville J considered the provisions of O 21, r 1 of the Federal Court Rules, which deal with vexatious litigants, and found, at [56], that:
The test of whether a person "without any reasonable ground institutes a vexatious proceeding" is an objective one. In Jones v Skyring [1992] HCA 39, (1992) 66 ALJR 810. at 813, Toohey J endorsed the observation of Ormerod LJ in In re Vernazza [1960] 1 QB 197, at 208, in relation to almost identical language contained in the Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 51(1):
"[The words] are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious".
As Toohey J observed, the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is therefore immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected. [Emphasis added].
It is clear from the judicial history of the current proceedings, including the above-quoted observations by Hayne and Kirby JJ (in (NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 184 at 2; and NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2007] HCA Trans 354 at 3, respectively), that the applicant has no prospect of success. It is therefore immaterial, for the purpose of determining whether the applicant is a vexatious litigant, that he may believe in the justice of his argument or claim, and may not understand that his argument or claim has been authoritatively and finally rejected.
In NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1124, which constituted the applicant's second application to the Federal Magistrates Court seeking judicial review of the same Tribunal decision, Barnes FM considered whether the applicant should be found to be a vexatious litigant. Her Honour found that because there had only been one prior application to the Federal Magistrates Court by the applicant for judicial review, albeit that it had been pursued by way of appeal through to the Federal Court and the High Court, the circumstances of the second application to the Federal Magistrates Court did not come within Rule 13.11:
For the court to make an order pursuant to Rule 13.11(3)(b), it must be satisfied that the person has habitually and persistently and without reasonable grounds instituted vexatious proceedings in this court against another person. Clearly where this is only the first time in which review has been sought of the delegate’s decision (albeit that that application should be dismissed on the bases that I have referred to above) these are not circumstances which come within Rule 13.11(3)(b). Nor, where there has been one prior application for judicial review, albeit that it has been pursued by way of appeal through the Federal Court and the High Court, are the circumstances such as to satisfy me that the present proceedings can be described as "habitually and persistently" instituting vexatious proceedings, (at [20]).
I accept the submission of the first respondent that:
… her Honour's decision has foreshadowed to the applicant that if further proceedings were to be brought then the Court would contemplate the more serious order pursuant to rule 13.11 (transcript, 30/4/08, p 6).
The present application by the applicant represents his third application to the Federal Magistrates Court seeking judicial review of the same Tribunal decision. In these circumstances, I accept the submission by the first respondent that:
The applicant has, despite the forewarning provided by Barnes FM's consideration of whether to make an order under Rule 13.11, habitually and persistently instituted vexatious proceedings against the respondents in this and other Australian Courts.
I also consider that unless the applicant is declared a vexatious litigant there is a reasonable likelihood he will continue to bring applications concerning the Tribunal decision, notwithstanding that none of those applications would have any merit. In this regard I accept the submissions by the first respondent that:
If this Court does not make an order in the terms sought by the first respondent, there is strong reason to believe that future proceedings of a vexatious nature dealing with the same matters will be brought by the applicant
and that:
if the Court were to decline to make such an order then there's a very real risk that, following an unsuccessful application to the Federal Court and High Court, we could be back in the Federal Magistrates' Court for a fourth time (transcript, 30/4/08, p 6).
I have also considered the cost and other procedural implications of the applicant bringing this, and any future, groundless application. In this regard I accept the submission by the first respondent that:
This Court should find that the prejudice and cost to the Court, and the putting of valuable judicial resources to the determination of the matter, and the resources of the first respondent, must be managed by the Court by the making of an order [that the applicant be declared a vexatious litigant] in the terms sought by the first respondent.
For the above reasons, I am satisfied that the requirements in Rule 13.11(3) for the applicant to be found a vexatious litigant have been meet, in the sense that he has “habitually and persistently and without reasonable grounds institute[d] vexatious proceedings in the Court against [the first respondent]”. I am further satisfied that, in these circumstances, the Court should exercise its discretion to put in place consequential orders pursuant to Rule 13.11(3)(a) and (b) to ensure that the Court’s process is not further abused by the applicant.
Conclusion
The Application in a Case by the first respondent is upheld.
The application filed by the applicant on 4 April 2008 is dismissed pursuant to Rule 13.10(a) and (c) of the Rules.
The applicant is a vexatious litigant within the meaning of Rule 13.11(3) of the Rules. Accordingly, in the exercise of its discretion, the Court makes consequential orders pursuant to Rules 13.11(3)(a) and (b) of the Rules that:
·any proceeding instituted by the applicant against the first respondent may not be continued without the leave of the Court; and
·the applicant may not institute any proceeding against the first respondent without leave of the Court.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 26 May 2008
0
17
3