NAII v Minister for Immigration
[2005] FMCA 1335
•19 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAII v MINISTER FOR IMMIGRATION | [2005] FMCA 1335 |
| MIGRATION – Refugee – no reasonable cause of action – frivolous or vexatious – abuse of process – bias and bad faith – natural justice. |
| Migration Act 1958, ss.424A(1), 424A(3)(a) Federal Magistrates Act 1999, ss.14, 15 Federal Magistrates Court Rules 2001, rr.21.02(2)(a), 13.10, 13.10(c), 4.01, 4.02, 4.05(1) |
| Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 SBBS v Minister for immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 SBANv Minister for immigration and Multicultural and Indigenous Affairs [2002] FCA 591 Minister for Immigration and Multicultural and Indigenous Affairs v NAOSof 2002 [2003] FCAFC 142 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 SZBIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 255 |
| Applicant: | NAII |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 840 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 August 2005 |
| Date of Last Submission: | 19 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. P. Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
That no application be accepted for filing at the registry of this Court in relation to the Refugee Review Tribunal decision made on 27 November 2002 without leave of the Court.
The applicant to pay the respondent’s costs set in the amount of $2500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 840 of 2005
| NAII |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
On 6 April 2005 the applicant, now known before me as NAII, filed an application seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which he identified as being on RRT file number: NOO/36354 and in respect of which he was notified on 19 December 2002. This appears to be the decision of the Tribunal made in respect of the applicant on 27 November 2002 affirming the decision of a delegate of the respondent Minister made on 7 November 2000 to refuse a protection visa to the applicant.
On 21 April 2005, the respondent filed an application seeking an order that the originating application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Act 1999 and pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”) on the basis that:
1)No reasonable cause of action or basis for the application is disclosed;
2)Further, or in the alternative, the proceeding or claim for relief is frivolous or vexatious; or
3)Further, or in the alternative, the preceding or claim for relief is an abuse of the process of the Court.
I also have before me, filed in Court on 21 April 2005, the affidavit of Patrick David Reynolds, a solicitor in the employ of the respondent solicitors, sworn on 21 April 2005. The affidavit and annexure show that the Tribunal decision complained of now has been the subject of previous consideration by this and other Courts. The relevant history appears to be:
1)On 29 January 2003 the applicant applied for judicial review, filed in the Federal Magistrates Court, of the decision of the Tribunal of 27 November 2002 (SZ 224 of 2003) (annexure “A” of the affidavit).
2)On 23 July 2003, following a final hearing of the matter, Driver FM dismissed the application. His reasons are at annexure “B”.
3)On 22 August 2003 the applicant sought an extension of time to file and serve a notice of appeal with the Federal Court (annexure “D”).
4)On 1 September 2003 the applicant's application for an extension of time to file and serve a notice of appeal was heard and dismissed by Whitlam J. (annexure “E”)
5)At annexure “G” is a copy of the application made by the applicant for special leave to appeal to the High Court filed on 26 September 2003.
6)At annexure “H” is the Certificate of Deemed Abandonment, sealed by the Court on 20 April 2004.
7)On 23 April 2004 the applicant made another application for special leave to appeal to the High Court (annexure “I”)
8)On 3 March 2005 of the High Court made orders refusing the special leave application and a transcript and copy of the orders are at annexure “J” and annexure “K”.
Having sought to test his complaint already in this Court, the Federal Court and on two occasions in the High Court, the applicant has now come full circle and has again commenced proceedings in this Court concerning the same Tribunal decision. In his application now, the applicant asserts the following (I have numbered the applicant's assertions for ease of reference):
1)The Tribunal made his decision in bad faith.
2)The Tribunal deprive me of the natural justice.
3)The Tribunal denied the evidentiary proof of my claim.
4)The Tribunal's decision did not reflect the material facts of my claim.
5)The Tribunal has given a decision which was preset in the back of its mind.
6)The Tribunal mixed up many facts with this decision which affected the decision.
7)The Tribunal concentrated in particular fact while ignored many other facts in this condition.
8)The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
9)My application is late. I refer to High Court case 157/2002 V MIMIA. I would provide more details of grounds later.
At the hearing before me I invited the applicant to make submissions in support of his complaint. He stated the independent information from DFAT was biased because the information about Pakistan was manipulated by the Australian Government and therefore the Tribunal’s decision was “tainted”.
I have read the Tribunal's decision now complained of by the applicant, and while I am not bound by it have noted the judgement of Driver FM dismissing the matter of SZ 224 of 2003, this being the last occasion when this applicant was before the Federal Magistrates Court. The applicant's claims before the Court now, as stated in his application, are formulaic in style and content and are very similar to other applications often seen in this Court. Critically they lack any particularity and there was nothing in what the applicant put to me at the hearing that added to the mere assertions made in the application. In the absence of any particulars and evidence there is obviously strength to the respondent’s claims that in these circumstances the applicant’s claims are meaningless.
In any event, in relation to the applicant's claims:
1)Ground 1 and ground 5 are allegations of bias and bad faith on the part of the Tribunal. It is well established that an allegation of bias is a serious matter which is not to be lightly made and which must be clearly alleged and proved. The applicant has put nothing before me, nor has been able to say anything to me, to go anywhere near to establishing any of the necessary matters as against the relevant tests. There is nothing to show that the mind of the decision maker was not open to persuasion; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. There is nothing to show in the context of apprehended bias that a fair-minded lay observer or properly informed lay observer might reasonably apprehended that the Tribunal might not have brought an impartial mind to reviewing the delegate’s decision: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425, and there is nothing before me in the context of bad faith to show that any of the propositions in SBBS v Minister for immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, SBAN v Minister for immigration and Multicultural and Indigenous Affairs [2002] FCA 591 and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 can properly be alleged, let alone made out.
2)Ground 2 alleges that the Tribunal deprived the applicant of natural justice. No particulars whatsoever have been provided and I can see no support for this ground in the material before me. The Tribunal, on the material before me, in particular the Tribunal's decision record and the judgement of Driver FM, saw the applicant's claims (and the applicant has not put before me anything to contradict what is in the Tribunal's decision record in this regard) as:
i)That if he returned to Pakistan he would be killed because of his involvement with an organisation called “Shi’a association” by their opponents, the “Sipah-i-Sahaba”. The Tribunal essentially rejected this claim on the basis of an adverse credibility finding. It found aspects of his claims in this regard to be implausible, and his explanation to be vague, unconvincing and unclear. The Tribunal did not accept that the applicant had been involved in the activities to which he claimed to have been involved and did not accept that the applicant was part of the Shi’a association or that he had been shot and threatened for this reason. These findings were, on what appears to have been before the Tribunal, open to it to make and it gave reasons for this. (Page 11.9)
ii)In addition, the Tribunal found that the applicant's behaviour subsequent to his departure from Pakistan strongly suggested that he did not fear being persecuted in Pakistan. The Tribunal gave reasons for this which was open to it. (Page 12.1)
iii)The Tribunal also looked at whether the applicant had a well founded fear of persecution in Pakistan for the reason that he was Shi’a Muslim. The Tribunal relied partly on independent evidence that indicated that Shi’a Muslims are not discriminated against in Pakistan, and on the applicant's own evidence to form of the view that he would be able to practise his religion on return to Pakistan and would not face discrimination because he is a Shi’a. (Page 12.8)
iv)The Tribunal, in the context of material provided to it which indicated there had been widespread communal violence between Sunni and Shi’a Muslims in Pakistani, relied on independent country information, including information provided by the applicant, that showed that the Pakistani authorities were willing and able to provide the applicant with adequate state protection in respect of any threat he may face from extremist organisations on account of his religion. In those circumstances it was not satisfied that there was a real chance that the applicant would be persecuted by reason of his Shi’a religion on return to Pakistan now or in the reasonably foreseeable future. The Tribunal's decision record gives an extensive account of what occurred at the hearing before the Tribunal (Page 5.7 to Page 8.7 of the Tribunal's decision record), and sets out the independent evidence on which it relied at Page 8.8 to Page 10. There is nothing before me to show that any of this independent information was not caught by the exception set out in s.424A(3)(a) from the requirement in s.424A(1) to provide information on which the Tribunal relies to the applicant for comment: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264. Further, the Tribunal's decision record shows that the substance of critical aspects of the independent country information was noted with the applicant and that the applicant was given the opportunity to comment at the hearing before the Tribunal. The applicant’s complaint at the hearing before me that the “DFAT Information” relied on by the Tribunal was tainted was not based on any evidence nor did the applicant say that he had any evidence which he could bring to the Court. He relied partly on the contention that the Australian Court had manipulated information when it suited it to do so. Without the possibility of any evidence to support the allegation that this manipulation occurred regarding the information about Pakistan relied on by the Tribunal, then this assertion cannot succeed as a ground of review.
3)Grounds 3, 4, 6 and 7 are, in the absence of any particulars, and on the basis that there is nothing apparent in the information before me to support these claims, misconceived. In essence the grounds ask the Court to review the Tribunal's findings of fact, and this is, of course, a request to undertake impermissible merits review.
4)Ground 8 asserts that the Tribunal “made up its mind” without any inquiry regarding his claim. Again this is unsupported by any evidence and on what is before me the applicant was given an opportunity at the hearing before the Tribunal to put his claims and to have put to the Tribunal whatever other matters he wished. There is nothing before me to show that the applicant sought any further enquiries to be made.
5)Ground 9 and the applicant's reference to the High Court case of “157/2002 V MIMIA”, when linked to the statement that the application to this Court is late, probably means that the applicant is seeking to rely on the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 to argue that notwithstanding that he has now brought this application to this Court some two and a half years after the Tribunal decision, that nonetheless the Court should look at the application because presumably he claims that it is infected with jurisdictional error.
The application put before me by the applicant fails to disclose a reasonable cause of action and should be dismissed pursuant to Rule 13.10 of the Rules. I note that Rules 4.01 and 4.02 relevantly provide that an application to the Court must state precisely and briefly the orders sought, and the basis upon which they are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application. I note that the applicant has filed no such affidavit. In any event, orders summarily dismissing proceedings should only be made where there is no real question to be tried or where claims are clearly untenable and cannot succeed. This is well established. The question for the Court is whether, on the material before the Court, it is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. It must be plain and obvious that the grounds of the application are unarguable or that it is a hopeless case with no chance of success. I have also noted the circumstances of the applicant, that is, that he is unrepresented before me, and I have also considered independently whether, on the material before me, any arguable case could be made out by the applicant. While the application for review put before me now states numerous grounds, no particulars of any alleged jurisdictional error are asserted. There is no evidence, by way of affidavit or otherwise, put before me by the applicant and nor was the applicant able to indicate that he could provide any such evidence. I have already looked at all of the grounds and find that there is no substance to any of the grounds for review put forward by the applicant. In all the circumstances, the application does not raise any arguable case or any real question to be tried and accordingly discloses no reasonable cause of action. The application should be dismissed on this basis.
I would also dismiss this application as an abuse of process pursuant to Rule 13.10(c) of the Rules. The grounds of review in the current application are formulaic, and meaningless in the absence of any particulars and evidence. They are clearly untenable and bound to fail on the face of the materials that are already before the Court. The proceedings therefore, being groundless on their face, are an abuse of process. Further, the current proceedings suffer from the same characteristics as the proceedings which the applicant pursued previously before Driver FM. While in the case before me the applicant has put forward a suite of complaints which make reference to possible legal issues, as opposed to what he put before Driver FM, which was a statement of the facts before the Tribunal, nonetheless, the application is still completely devoid of particulars disclosing any substantial basis for the application. SZBIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 255 at 21 per Moore J. The applicant has already unsuccessfully attempted to test the Tribunal's decision before this Court. He sought review of that decision by the Federal Court, and on two occasions approached the High Court. This second time round he still has not brought anything of substance to this Court. In these circumstances I would also dismiss the application as an abuse of process. I make orders dismissing the application on the basis of what is set out above and on the basis that this application is an abuse of the Court’s process. I will also make an order that the Tribunal not file any further application in relation to this Tribunal decision without leave of the Court.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 14 September 2005
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