S105 of 2003 v Minister for Immigration - [2006] FMCA 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S105 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 125

MIGRATION & CITIZENSHIP – Immigration – application for review of a decision of the Refugee Review Tribunal – whether any reviewable error disclosed by decision of the RRT – where applicant did not attend the Tribunal hearing – applicant notified of inadequacy of information provided to the Tribunal – inevitable result of non-attendance – reason for the Tribunal’s decision the absence of information.

PRACTICE & PROCEDURE – Abuse of process – res judicata – where application for review previously decided by Federal Court – where application for extension of time to file and serve a notice of appeal refused by Federal Court.

PRACTICE & PROCEDURE – Orders nisi – writ of prosecution – writ of certiorari – to obtain an order nisi a party must show an arguable case that the Tribunal has gone beyond its jurisdiction.

PRACTICE & PROCEDURE – Individual Tribunal member constituting Refugee Review Tribunal should not be joined as a respondent in application for prerogative relief.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 474, 477
Federal Magistrates Court Rules 2001 sch. 1

Applicant NADI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 649 referred to
Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCA FC 150
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
NADI of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1055 referred to
Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 followed
S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 followed
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Abebe (1999) 197 CLR 510
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134 of 2002 (2003) 211 CLR 411
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim (2000) 175 ALR 209
Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 followed
M1013 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 800 followed
VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018
W396 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 68 ALD 69
Walton v Gardiner (1993) 177 CLR 378
Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722

Applicant:

APPLICANT S105/2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2271 of 2005

Judgment of:

Scarlett FM

Hearing date:

16 January 2006

Date of Last Submission:

16 January 2006

Delivered at:

Sydney

Delivered on:

16 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr Slattery

Counsel for the Respondent:

Ms McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Third Respondent is removed as a party to the application.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2271 of 2005

APPLICANT S105/2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for an order nisi relating to a decision of the Refugee Review Tribunal. The Tribunal made its decision on

9^th January 2002 after a hearing scheduled for 15^th November 2001.

The Refugee Review Tribunal handed down its decision on

5^th February 2002 affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the applicant a Protection Visa.
The applicant sought a review of the decision of the Tribunal in the Federal Court by means of an application filed on 1^st March 2002. That application relied on several grounds.
i)That the procedures that were required to be observed in accordance with the Migration Act in connection with the making of the decision were not observed.
ii)The Tribunal made the decision without interviewing the applicant; as such the state of affairs of the applicant were not determined by the Tribunal.
iii)The Tribunal made a number of errors in deciding the fate of the applicant's claim.
iv)The Tribunal incorrectly portrayed the real picture of the applicant's claim.
I would comment at this stage that it is true that the Tribunal made the decision without interviewing the applicant in that the applicant did not attend the hearing of the Tribunal that had been scheduled.

The Tribunal invited the applicant to give oral evidence and present arguments at a hearing and sent a copy of that letter to the applicant's adviser. On the 21^st October 2001, several weeks before the hearing date, the applicant advised the Tribunal that he wanted to give oral evidence and would be bringing his adviser with him to the hearing. But the applicant however did not attend the hearing, nor did he contact the Tribunal to explain his failure to attend. The applicant's adviser did not attend the hearing nor did he send any communication to the Tribunal. The Tribunal proceeded to decide the matter using its powers under s. 426A of the Migration Act without taking any further action to enable the applicant to appear before it.
The first respondent Minister seeks that the application be dismissed on a variety of grounds, including the fact that it is an abuse of process. The Minister refers to the original application of the Federal Court. That application was heard by Sackville J and dismissed with an order for costs on the 23^rd May 2002. The decision was a decision on the merits of the application.
The applicant had filed written submissions which raised four separate arguments and Sackville J considered each of those contentions and came to the conclusion at paragraph 14 that none of the contentions raised by the applicant established error on the part of the Refugee Review Tribunal. The Federal Court therefore dismissed the application on 23^rd May 2002.
What then happened was that on 19^th July 2002 the applicant applied for an extension of time to file and serve a notice of appeal from the previous Federal Court proceedings. On 20^th August 2002 Branson J refused that application on the basis that the proposed appeal had no real prospects of success. The media neutral citation to the decision of Sackville J is Applicant NADI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 649, media neutral citation for the decision of Branson J is NADI of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1055.
On the 24^th March 2003 the applicant filed in the High Court an application for an order nisi in respect to the Tribunal's decision.

On 25^th August 2003 that application was remitted to the Federal Court. On 5^th August 2005 the Federal Court transferred the matter to this Court. The applicant was represented by counsel who filed written submissions and addressed the Court orally. I would comment at this stage that I understand it to be true that counsel had not been made aware by his client of the earlier proceedings and clearly it was not until fairly late in the proceedings that counsel became aware of the reality of the earlier hearing by the Federal Court.
For the applicant, counsel submitted that there was a claim of jurisdictional error which should be considered; namely a failure to consider the reality of persecution. The submission goes that the Tribunal had not considered the reality of the chance of persecution to the applicant because it is political opinion if the current regime of law and order in Bangladesh should collapse or the old regime under which the applicant claimed persecution and political violence was rife was reinstated and the failure of the Tribunal to address this issue prevented it from having a rational basis to determine the chance of persecution of the applicant in the future and resulted in the Tribunal not considering an essential, substantial matter of the applicant's claim.
The applicant refers to the decisions of W396 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 68 ALD 69 at [33] and also Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 at [259], paragraph 7 and 13 to 14 and also paragraph 42. The Tribunal cannot limit its determination of the case to just that put by the applicant and must deal with the claim raised by the evidence.
In oral submissions counsel addressed me further on the submission as to the possible collapse of the current regime in Bangladesh. The basis of the applicant's refugee case claim is that he had been a supporter of the BNP, one of the main political parties in Bangladesh and as such had been subject to a degree of violence and intimidation by supports of the Awami League. The Tribunal noticed that the BNP had come to power in Bangladesh as a result of the general election and that the independent evidence showed that the BNP was capable of acting decisively to deal with bad behaviour even by its own members and that the forces of law and order in that country can and will enforce the anti-crime laws according to the estate of non-discriminatory purpose.
The counsel for the applicant pointed out that the Tribunal had considered the Tribunal's finding at page eight of the decision where the Tribunal member said:
It is possible that he might again be threatened with harm.
The Tribunal was satisfied on the independent evidence that the applicant would not be denied protection and the Tribunal did not consider it to be the case that the authorities of Bangladesh are unwilling and incapable of providing protection.
What counsel for the applicant suggests, in a somewhat ingenious argument, is that the Tribunal should have considered the possibility that just as the BNP, the applicant's party had specularly gained power by legal means in a general election, the possibility is that the BNP could lose power in Bangladesh either through another election or - and perhaps less likely - by means of some extra constitutional activities such as a coup d'etat. In the alternatives; there could be a situation where there was a collapse of law and order. These things, he submitted, were matters that the Tribunal had an obligation to consider.
Looking at the application in general, the first point that needs to be made and one which I dealt with before I heard the submissions, was that it was inappropriate for an individual Tribunal member to be named as a separate party to the proceedings. There were, in these proceedings, three respondents, the Minister, the Tribunal and the individual member in her capacity as a member of the Tribunal. It has been put to me by the first respondent and not disputed by the applicant's counsel, that it is not proper practice to make a person constituting a Tribunal the respondent in applications for prerogative relief. See Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at [489] and see also M1013 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 800 at [6]. I made a decision at the beginning of the case that the third respondent should be removed as a party to the application and I will make a formal order to that effect.
This case, being one of a number that have been remitted from the High Court and transferred from the Federal Court, is not an application in the usual way but an application to show cause why Constitutional writs should not be issued. It is an application for an order nisi. The test for this is set out in Re Australian Nursing Federation; Ex parte State of Victoria & Anor (1993) 112 ALR 177 at [183], per McHugh J and also in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCA FC 150 at [35].
In Re Australian Nursing Federation at page 183 of the judgment McHugh J said:
To obtain an order nisi for a writ of prohibition or certiorari a party must show that he or she has an arguable case of the Tribunal to whose proceedings the writ is directed has gone beyond its jurisdiction.
In my view, the first matter that the Court needs to consider is the fact that these proceedings or the issue in these proceedings has already been decided by a full hearing in the Federal Court. The respondent has submitted and with justification in my view, that the Court should consider the doctrines of res judicata, issue estoppel and Anshun estoppel and the respondent submits that these proceedings are an abuse of process.
I have had the opportunity to read through the decision of Sackville J in Applicant NADI v Minister for Immigration & Multicultural & Indigenous Affairs, to which I have previously referred and it appears to me, with the greatest of respect, that his Honour covered the issues raised by the applicant and the issues that were raised in this case, apart from the issue raised by counsel today, were raised in the previous proceedings.
The Federal Court determined that the Tribunal's decision was not affected by jurisdictional error and that the Tribunal did not misunderstand or misapply the Convention test. A res judicata or issue estoppel would apply in respect of the ground now being advanced. See Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722, also S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65 and also VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018.
In my view, the particular ground raised by the applicant relating to the possibility of the BNP losing power was not specifically raised in the earlier proceedings but if the applicant was to rely on such a ground that ground should have been raised. There is, to my view, no evidence of any special circumstances to why it should now be permitted to be raised. I refer again to Wong v Minister for Immigration & Multicultural & Indigenous Affairs, again to S635 of 2003 and also to VWZG v Minister.
It is also well established that it is an abuse of process to re-litigate an issue that has already been determined. See Walton v Gardiner (1993) 177 CLR 378 at [393] and see also VWZG v Minister for Immigration & Multicultural & Indigenous Affairs. In Walton v Gardiner (supra), Mason CJ and Deane and Dawson JJ, said at 393:
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 fore-doomed to fail.

Again, proceedings within the jurisdiction of a Court will be unjustifiably oppressive and vexatious of an objecting defendant and will constitute an abuse of process if that Court is, in all the circumstances of the case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a Court should be stayed as an abuse of process if notwithstanding that the circumstances do no 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.
In my view, these proceedings do constitute an abuse of process although, as I said, I am mindful of the fact that counsel for the applicant was unaware of this history at the time when he accepted the brief.
The other point to make is that the ground which I said has been raised now but should have been raised earlier is not a ground that establishes an error. It is a purely speculative ground and the Tribunal is not obliged to speculate on what could happen in circumstances which, whilst not impossible, are in the immediate future unlikely. But it is clear that the reason why the Tribunal affirmed the decision of the delegate was that there was an insufficiency of evidence. The applicant did not attend the Tribunal hearing. These issues of course have been dealt with in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, which is a decision of Bennett J on appeal from the Federal Magistrates Court. Her Honour said at paragraph eight:
It is well accepted that the powers of the Tribunal to make an investigation under the Act do not give rise to any mandatory investigation. See Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte; Cassim (2000) 175 ALR 209 at [13]. It is for the appellant in this case to present to the Tribunal material necessary for it to achieve the requisite satisfaction, Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte Abebe (1999) 197 CLR 510, also Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte; Applicant S134 of 2002 (2003) 211 CLR 411.
In this case the applicant had not provided the Tribunal with sufficient evidence for it to consider any likelihood of a failure of the BNP in Bangladesh to maintain government, either through a future electoral failure or through some form of a coup or a total breakdown of law and order. The Tribunal was just not convinced, on the evidence before it, that the applicant had suffered persecution for a convention reason.
The decision of SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 also deals with the situation which is not uncommon of where an applicant, for some reason or other, does not attend the Tribunal hearing. That issue of course was referred to in SZBKB and in paragraph 18 of SZBKB, Bennett J agreed with the observations of Healy J in SZDXC paragraph 16. What his Honour said at paragraph 16 in SZDXC about an applicant who had not attended a Tribunal hearing was this:
The RRT made it pellucidly clear in its letter of 12^th March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it. And as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application. Thus, even now, the RRT adverted to that as BNC(?) in its reasons what was integral to the RRT’s reasoning process was the notified inadequacy of the information provided by the appellant in support of his claims and his rejection of the invitation to appear at a hearing designed to afford him the opportunity to elaborate on that information.
With respect, I agree with the decision of their Honours in both SZBKB and SZDXC. They are both appeals from a decision of the Federal Magistrates Court and in any event they are binding upon this Court and I propose to follow them.
The simple fact is that the applicant has not made out an arguable case. The point that was made is one which should, in any event, have been made in earlier proceedings and the applicant is estopped from making it now and finally and perhaps most importantly, this matter has already been heard and determined by the Federal Court in proceedings before the Honourable Sackville J.
In my view, the appropriate orders to make are to dismiss the application with costs. It seems to me that the amount sought is within the range envisaged by sch. 1 of the Federal Magistrates Court Rules 2001.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 27 January 2006