Plaintiffs S619-2007 v MIAC & Anor

[2008] HCATrans 255

[2008] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S619 of 2007

B e t w e e n -

PLAINTIFFS S619/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 JUNE 2008, AT 9.33 AM

Copyright in the High Court of Australia

MS D.J. WATSON:   I appear for the first defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Do you know if the first plaintiff is present?

MS WATSON:   I have not seen anybody on his behalf.

HIS HONOUR:   Could the matter be called three times outside the Court?

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Have you an affidavit of service?

MS WATSON:   I do, your Honour.  I would seek to file in Court an affidavit of myself sworn 23 June 2008.

HIS HONOUR:   Yes, that leave is granted.  I will just read through it.  So the effect is that letters have been sent by registered post and express post to the address for service nominated by the first plaintiff?

MS WATSON:   Yes, your Honour.

HIS HONOUR:   Those letters indicated that the matter would be heard at 9.30 today.

MS WATSON:   Yes.

HIS HONOUR:   Very well.

MS WATSON:   Your Honour will see that in relation to the express post item, which would be delivered to the post office box directly, that has not been returned to our office.  In relation to the registered post item which needs to be a person to person delivery, we were advised yesterday by Australia Post that nobody had attended the post office to pick up the registered post item so it still sits with the post office at present.

HIS HONOUR:   Do you submit that more than sufficient steps have been taken to ‑ ‑ ‑

MS WATSON:   As your Honour would be aware, on the last occasion the applicants received a copy of the summons and were advised of the hearing date on that occasion.  These letters were follow‑up letters to advise the applicants of the new hearing date.  My submission would be that the plaintiffs have been given adequate notice of today’s hearing and in the absence of the plaintiffs, your Honour would be satisfied that sufficient notice has been given and that the proceedings should be dismissed.

HIS HONOUR:   Yes, thank you.  I do not think I need trouble you any more.  Since the first plaintiff has not come, you can leave if you wish.  I should indicate that the second defendant has submitted to any order the Court may make save as to costs.

In these proceedings an affidavit of Brin Ellen May Anniwell was filed on 2 May 2008 and I have read that.  I have also read an affidavit of the first plaintiff filed on 13 December 2007 and an affidavit of Dale Jennifer Watson which was sworn on 23 June 2008.

On the last occasion there was no appearance from either of the plaintiffs.  The address for service supplied on the initiating process is PO Box 356, Gol Gol, NSW 2738.  There were doubts as to whether service had been sufficiently effected when the matter was last before the Court 21 days ago.  Since then Ms Watson has caused two letters in identical terms to be sent.  Those letters noted that there was no appearance on behalf of the first plaintiff, and informed him that the summons had been adjourned to today’s date at 9.30.  The letters also said that if there was no attendance by the plaintiff or a legal representative, orders might be made against him, including that the proceedings be dismissed with costs.

One of the letters was sent by registered post and the other letter was sent by express post.  Ms Watson has not received any notification that either letter has been returned to her office and she has been informed by a member of her staff that Australia Post has advised that the item sent by registered post had not been signed for as at yesterday’s date.  In my opinion, sufficient steps have been taken to effect service, and there is no reason why the matter should not proceed.

The plaintiffs filed a writ of summons on 13 December 2007 seeking relief under section 75(v) of the Constitution against a decision of the Refugee Review Tribunal on 10 January 2006. The background is that the plaintiffs are citizens of India; they come from Gujarat. A delegate of the first defendant refused to grant them a protection visa on 9 June 2006. The Tribunal affirmed that decision in the statement of decision and reasons handed down on 1 February 2007.

Before the Tribunal, the first plaintiff, a Hindu, claimed to fear religious persecution from Muslims.  The second plaintiff is the wife of the first plaintiff.  Her claim is as a member of the first plaintiff’s family and is thus reliant on his.  The Tribunal concluded that the first plaintiff had fabricated his claims of having been attacked by Muslims.  It found the first plaintiff’s claims not to be credible.  The claims the first plaintiff made at the hearing were completely different from the claims the first plaintiff made in his protection visa application and were, in part, not consistent with country information before the Tribunal.  Further, the first plaintiff had submitted fraudulent financial and employment documents to obtain the visitor visa by means of which he entered Australia.  The Tribunal was also satisfied that state protection was available and adequate for Hindus should future violence take place in Gujarat.

On 13 February 2007, the plaintiffs filed an application for judicial review of the Tribunal decision in the Federal Magistrates Court.  On 1 June 2007, Federal Magistrate Turner dismissed the application on the ground that the Tribunal had not fallen into jurisdictional error.  On 28 June 2007, the plaintiffs filed an application for an extension of time within which to file and serve a notice of appeal from Federal Magistrate Turner’s orders.  On 14 July 2007, the Federal Court of Australia, Justice Madgwick, dismissed the application on the ground that any appeal would be futile in view of the manifest correctness of Federal Magistrate Turner’s reasoning.

The matter is before this Court because on 2 May 2008 the first defendant filed a summons seeking that the proceedings be dismissed as being frivolous or vexatious, as being an abuse of process and as having not been diligently prosecuted by the plaintiffs. Arguably, the writ of summons was the wrong initiating process. Part 25 contemplates that where relief under section 75(v) of the Constitution is sought, an application for an order to show cause under Part 25 is the correct course. However, that defect is not fatal.

The starting point must be Justice Madgwick’s reasons for judgment. No direct attempt has been made by the plaintiffs to demonstrate error in them. Rather, the plaintiffs attack the Tribunal’s decision. They do so on three grounds. First, they contend in the statement of claim forming part of the writ of summons that the Tribunal’s invitation to the plaintiffs to appear before it for a hearing under section 425 of the Migration Act 1958 (Cth) was invalid because it did not explain the significance of sections 426 and 426A. Putting aside the fact that the letter is not in evidence, there is nothing in this point. The fact is that the first plaintiff was invited. He did appear, he did give evidence; hence section 426A does not arise. Further, even if the point had any force, it was not raised before Federal Magistrate Turner or Justice Madgwick. It is an abuse of process to seek to raise it now.

A second ground raised by the plaintiffs in the statement of claim is that the Tribunal failed to comply with section 424A.  This was not raised before Federal Magistrate Turner.  It was raised before Justice Madgwick, but without any particularisation.  The Tribunal’s reasons for decision state:

“Following the hearing, a notice under [section] 424A of the Act was sent to the applicant.  The notice put to the applicant the inconsistencies in his evidence at the hearing and the claims in his protection visa application and the information he provided in his visitor visa application.  The notice put to the applicant that the Department of Immigration had received an allegation that he had provided fraudulent financial documents and employment documents to obtain his visitor visa.  The Tribunal invited the applicant to comment on this information.  The applicant was advised that if he did not comment on this information the Tribunal may make a decision on the review without further notice.”

Apart from those matters, there is no other aspect of the Tribunal’s reasoning which called for a need to comply with section 424A and it is now clear, by virtue of a decision delivered after the Tribunal’s order, that it was not necessary to raise the first aspect:  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.

A third point raised by the first plaintiff is put thus in paragraph 5 of his affidavit filed on 13 December 2007:

“I believe that by protesting the corruption of the police in India and also by denying to pay bribes to the police in India, I expressed my political ideology which falls within the meaning of political opinion pursuant to Article 1(A) of the Convention. In that sense, the Tribunal made a fatal mistake that the persecution I suffered was not for a convention reason, although what I have experienced in India can be termed as persecution within the meaning of s91R of the Migration Act 1958.”

No such claim was made before the Tribunal.  The first plaintiff had claimed that some of the police in the area where he resided in India were Muslims and therefore did nothing to protect him.  He also asserted that the Indian police were corrupt.  However, he made no claim that he was involved in protests about this, nor that the police had asked him for bribes which he had refused to pay.

For the reasons given above, the plaintiffs’ proceedings should be dismissed as frivolous and vexatious and an abuse of process.  They ought also to be dismissed for the reason that the plaintiffs have not complied with rule 27.06 in that they have not, in the six months in which the proceedings have been on foot, filed a summons for directions or submissions.

I order that the writ of summons filed by the plaintiffs on 13 December 2007 be dismissed with costs.  Anything else needed?

MS WATSON:   No thank you, your Honour.

HIS HONOUR:   Thank you.  The Court will now adjourn.

AT 9.49 AM THE MATTER WAS CONCLUDED