S1000 of 2003 v Minister for Immigration - [2004] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1000 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 963

MIGRATION – Application by the Minister for summary dismissal of judicial review application – several earlier judicial review applications in respect of the same decision – same grounds being advanced as in the initial proceedings, which were discontinued – no substance to those grounds – judicial review application dismissed summarily as vexatious and an abuse of process.

Migration Act 1958 (Cth), s.476

Hunter v The Chief Constable of the West Midlands Police (1982) AC 529
SZDDG v Minister for Immigration [2004] FMCA 420
Walton v Gardiner (1992-1993) 177 CLR 378

Applicant:

APPLICANT S1000 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1368 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:

Mr A Markus

INTERLOCUTORY ORDERS

The application for judicial review filed on 10 May 2004 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 20 March 2000 and handed down on 4 April 2000 be accepted for filing in this Court, except by leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1368 of 2004

APPLICANT S1000/2003

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application by the respondent Minister for the summary dismissal of a judicial review application filed on 10 May 2004. The judicial review application sought the review of a decision of the Refugee Review Tribunal (“the RRT”) made on 20 March 2000 and handed down on 4 April 2000. The Minister's application for summary dismissal, filed on 19 August 2004, asserts that the judicial review application discloses no reasonable cause of action, is frivolous or vexatious and is an abuse of process. The Minister does not press a notice of objection to competency filed on 16 June 2004.
The Minister's application is supported by an affidavit of Andrew John Crockett made on 18 August 2004 and filed the following day.

I received that affidavit as evidence for purposes of today's hearing. I also
received as exhibits C1 and C2, two letters to the Court from the applicant's panel adviser dated 9 and 10 December 2004.
The judicial review applicant is from Bangladesh and had made claims of political persecution. He was unsuccessful before the RRT essentially on the basis that his claims for a protection visa were found to lack credibility. His claims were found to be internally inconsistent and some aspects of his claims were found to have been fabricated.

It is plain that the applicant failed on credibility grounds.
The RRT decision has been the subject of several earlier judicial review proceedings. On 28 April 2000 an application under the former s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) was filed in the Federal Court. That application sought judicial review on grounds that cover the same ground as the present judicial review application. In fact, the first judicial review application went a little further. On 7 September 2000, the day that case was listed for hearing, His Honour, Gyles J made orders giving the applicant leave to discontinue the proceeding. The applicant was ordered to pay the Minister's costs.
In about October 2000 the applicant joined the Muin and Lie class action. Pursuant to orders of Gaudron J of the High Court on 25 November 2002 the applicant, through his solicitors, filed an affidavit annexing a draft order nisi on 20 May 2003 in the High Court in Sydney. Gaudron J remitted the proceedings to the Federal Court. On 30 April 2004 His Honour Emmett J refused the application for an order nisi. The present application was made some 10 days later.
The Minister's interlocutory application is opposed by the applicant. He asserts that the RRT decision was not made properly and the member was very rude. He asserts that he was forced to discontinue his initial proceedings in the Federal Court because of a lack of money. He also asserts difficulties in obtaining legal advice.
Exhibits C1 and C2 establish that the applicant has received advice from Mr Michael McAuley who was the applicant's allocated panel adviser. That advice was only given on 10 December 2004. It is apparent from exhibits C1 and C2 that Mr McAuley has felt inhibited in his ability to provide advice. However, it is also apparent that the difficulties confronting Mr McAuley came about initially because the applicant failed to keep an appointment for an interview. More recently the applicant did not produce to Mr McAuley documents that he required in order for him to give useful advice. I find that the difficulties Mr McAuley experienced were not the fault of the Minister or her legal advisers.
The mere fact that the RRT decision has been the subject of earlier legal proceedings does not of itself render the present proceeding frivolous or an abuse of process. However, the present judicial review application suffers from the same vices as the initial proceedings commenced in the Federal Court. The present application asserts three grounds of review but no particulars are given.
The applicant first asserts a lack of procedural fairness because the RRT had information that was not disclosed. On my reading of the RRT decision that assertion could not be sustained. The RRT decision was made on credibility grounds based upon the applicant’s own evidence. The judicial review application secondly asserts that the RRT took irrelevant considerations into account. That ground must also fail because the RRT decision was based upon an issue of credibility that the RRT was entitled to take into account. Thirdly, the judicial review application asserts that the RRT conducted the hearing very rudely. It is not clear what that amounts to in legal terms but the allegation might support a claim of actual or imputed bias, or possibly a constructive failure to exercise jurisdiction, or possibly also a breach of s.425 of the Migration Act. However, the allegation is meaningless in the absence of particulars and evidence.
Based upon what the applicant told me today from the bar table, it is obvious that he has had ample time to produce particulars and evidence. He has had the tapes of the hearing before the RRT for around four years. A court book was prepared for the first proceedings in the Federal Court which has been available to the applicant. In my view, if the applicant could sustain the third ground of his judicial review application that would have been apparent by now. The applicant told me that his brother has been successful in having remitted a similar decision of the RRT. However, the fact that one RRT decision is set aside, apparently in that case by consent, does not carry any necessary implication for any other RRT decision.
In my view, there is no substance to the present judicial review application. The grounds substantially mirror grounds advanced in the Federal Court proceedings four years ago. The applicant had a further opportunity to agitate these grounds when his proceedings were severed from the Muin and Lie class action and remitted to the Federal Court. The interests of the administration of justice certainly do not require that the applicant be given a further opportunity. On the contrary, the interests of the administration of justice require that the applicant be denied that further opportunity.
The issues have been considered in this Court on a number of occasions. I refer, for example, to the decision of Federal Magistrate Raphael in SZDDG v Minister for Immigration [2004] FMCA 420, in particular at paragraphs 8 to 10. I agree with the principles outlined by Federal Magistrate Raphael in paragraph 8 and 9 of that decision:
In Walton v Gardiner (1992-1993) 177 CLR 378 at 392 – 393 Mason CJ, Deane and Dawson JJ said:
“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 proprietary 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 foredoomed to fail ..... Yet again, proceedings 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 is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] as
"the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people".
I find that the present proceedings are vexatious and an abuse of process. I will, on those bases, dismiss the judicial review application.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Markus estimates the Minister's party/party costs at $2,000. I am satisfied that costs of that order have been incurred properly and reasonably on behalf of the Minister. The applicant referred to his financial difficulties, he is presently unemployed. However, impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
There is one further matter I want to deal with. Given that I have found an abuse of process in this matter it is also appropriate that I order that no further application by this applicant to review the decision of the RRT made on 20 March 2000 and handed down on 4 April 2000 be accepted for filing in this Court, except by leave of the Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2004