S116 of 2003 v Minister for Immigration

Case •

[2006] FMCA 119

•

16 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S116 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 119

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of delegate not to grant a protection visa to the applicant – whether any reviewable error disclosed by decision of the RRT – res judicata – abuse of process.

PRACTICE & PROCEDURE – Abuse of process – an application amounts to an abuse of process if it is filed for a collateral purpose – the repeated bringing of similar applications can still be an abuse of process if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute – by filing repeated applications with respect to the same RRT decision, the proceedings are an abuse of process.

PRACTICE & PROCEDURE – Order Nisi – applicant must show an arguable case for final relief.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(a), 474, 477
Federal Magistrates Court Rules 2001, rr.13.10(c), 44.05
Applicant S61 of 2000 v Refugee Review Tribunal [2004] FCAFC 150
Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314
Johnson v Gore Wood & Co (2002) 2 AC 1
M1013 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 301
Minister for Immigration v Ethnic Affairs in Wu Shan Liang (1996) 185 CLR 259
NABE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1410
NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 155
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Re Australia Nursing Federation Ex parte; State of Victoria (1993) 112 ALR 177
Re Ruddock Ex parte; Reyes (2000) 177 ALR 484
Rogers v The Queen (1994) 181 CLR 251
SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96
SZVJM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 599
VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018
Walton v Gardiner (1999) 177 CLR 378
Applicant: APPLICANT S116 OF 2003
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2362 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

  1. The Third Respondent, Kim Rosser, member of the Refugee Review Tribunal, is removed as a party to the application.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2362 of 2005

APPLICANT S116 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for an order nisi in relation to a decision of the Refugee Review Tribunal. The Tribunal made its decision on 13th August 2002 after a hearing that took place on 6th August 2002.  The Refugee Review Tribunal handed its decision down on 3rd September 2002. 

  2. The Tribunal's decision was to affirm the decision of the delegate, the Minister for Immigration and Multicultural Affairs not to grant the applicant a Protection Visa.  The applicant is a citizen of Bangladesh who arrived in Australia on 29th December 1999.  On 9th February 2000 he applied for a Protection Visa.  The Minister's delegate refused this application on 11th April 2000 so the applicant applied to the Refugee Review Tribunal for a review of that decision on 13th May 2000.

  3. After the Tribunal handed down its decision on 3rd September 2002 the applicant filed an application for judicial review under s. 39B of the Judiciary Act 1903 (Cth) in the Federal Court on the


    26th September 2002.  A copy of this application forms annexure A of the affidavit of Ben Cramer, dated 13th January 2006 filed in these proceedings. 

  4. On 11th November 2002 Allsop J in the Federal Court, dismissed the application under Order 10, Rule 3 of the Federal Court Rules for want of attendance by the applicant.  See NABE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1410.

  5. On the 2nd December 2002 the applicant filed a notice of appeal against that decision.  The appeal was listed for directions on 3rd March 2003.  Emmett J decided to treat the notice of appeal as an application for extension of time to seek leave to appeal as the decision of Allsop J was an interlocutory decision.  His Honour dismissed the application.  NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 155.

  6. The applicant then filed an application for an order nisi in the High Court on 1st April 2003.  The application sought an injunction and writs of mandamus and certiorari in relation to the Tribunal decision. 


    On 25th August 2003 Heydon J remitted the proceedings to the Federal Court of Australia.  On 5th August 2005 Emmett J transferred the proceedings to the Federal Magistrates Court. 

  7. In a purported amended application under r.44.05 of the Federal Magistrates Court Rules 2001, filed before the rule came into operation, the applicant seeks to rely on these grounds:

    a)Ground one; wrong application of law to facts as found in relation to the seriousness of harm that constitutes persecution.

    b)Ground two; application of the wrong test in relation to whether or not a convention reason was an essential and significant reason for the persecution.

    c)Ground three; the Tribunal has improperly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the criminal activity against persons of the applicant's ethnicity and

    d)Ground four; failure to consider the reality of the chance of persecution by requiring the applicant to avoid persecution.

  8. Counsel for the first respondent Minister, Ms McNaughton, submits that the test for the grant of an order nisi is that the applicant can show an arguable case for final relief.  See Re Australia Nursing Federation Ex parte; State of Victoria (1993) 112 ALR 177 at [183] per McHugh J. See also Applicant S61 of 2000 v Refugee Review Tribunal [2004] FCAFC 150, pp 35, Branson J.

  9. The first respondent submits that the application is an abuse of process and seeks a dismissal under r.13.10(c) of the Federal Magistrates Court Rules 2001 claiming that there are four main reasons why the application should be dismissed on that basis.

    a)An application for judicial review is an abuse of process if it is filed for a collateral purpose such as extending the period of the applicant's stay in Australia. NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366 at [12]. VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018.

    b)Even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process if it would be unjustifiably vexatious or oppressive or bring the administration of justice into disrepute.  See Walton v Gardner (1999) 177 CLR 378 at [393], Rogers v The Queen (1994) 181 CLR 251 at [255] to [256], Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at [323] to [326].

    c)The Court should consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter.  Johnson v Gore Wood & Co (2002) 2 AC 1 per Lord Bingham at [22]-[34]. Also SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96 per Driver FM.

    d)By filing repeated applications with respect to the same Refugee Review Tribunal decision the proceedings are an abuse of process.  See SZVJM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 599.

  10. In any event, the first respondent submits that the applicant has failed to show an arguable case for final relief. 

  11. The applicant submits that he has suffered and will suffer persecution if he returns to Bangladesh on the basis of his ethnicity as a Pakistani living in Bangladesh.  He complained of state intolerance of and police complicity in the piracy of his family's business.  The Tribunal accepted the substantial aspects of the applicant's claim but found people of Pakistani background are not treated badly in Bangladesh and that the essential and significant reason for the harassment that he suffered was criminal.

  12. The Tribunal found that if the applicant returned to Bangladesh and avoided going near his family business premises, the chance that those responsible for the harm caused to him and his family would come looking to persecute him is remote and insubstantial. 

  13. The applicant submits that the Tribunal has:

    i)Wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution.

    ii)Applied the wrong test in relation to whether or not a Convention reason was an essential and significant reason for the persecution.

    iii)Improperly dealt with the aspect of the applicant's claim relating to State tolerance and complicity of the criminal activity against persons of the applicant's ethnicity.

    iv)Failed to consider the reality of the chance of persecution by requiring the applicant to avoid persecution.

  14. The applicant submits that so far as the ground of wrong application of law and facts, the Tribunal had decided that the harm already suffered by the applicant and his family was not severe enough to amount to persecution.  The applicant submits that it was not reasonably open to make such a finding.

  15. It was accepted by the Tribunal that the applicant's family had its business assets stolen by one Mohammed Ali and that those associated with him and were drawn into a litigation when Ali had forged documents to show that he and those associated with him were the real owners of the property.  It was also accepted that the applicant had been beaten up by people associated with Mohammed Ali and that the applicant had been threatened with arrest by police on two occasions as part of a campaign of harassment against the family. 

  16. In applying s.91R(1)(a) the Tribunal found that the essential and significant reason for what happened to the applicant was that criminals wanted to take control of his family's assets and this was because the Tribunal found that the primary motivating factor and the actions taken by them was obtaining control of the family's assets.

  17. The applicant submits that by moving away from the language of the section that the Tribunal has constructed a jurisdictional error for itself, causing the Tribunal to apply the wrong test.  See Minister for Immigration v Ethnic Affairs in Wu Shan Liang (1996) 185 CLR 259 at [38].

  18. The applicant argues that the Tribunal fell into error by failing to consider a relevant matter or adequately dealing with the integers of the claim because what the applicant complained of was tolerance and complicity of the state, i.e. the State of Bangladesh in the criminal activity perpetrated against his family because of the applicant's Pakistani ethnicity.  The Tribunal failed to deal adequately, it is submitted, that that aspect of the applicant's claim relating to state tolerance, condonation or complicity in the activity of the criminals.

  19. The applicant also submits the Tribunal fell into error by failing to consider the reality of the chance of persecution against him by discounting the chance of harm being suffered by the applicant if he returned to Bangladesh by virtue of requiring him to avoid going near his family's business premises.  This requirement, it is submitted, amounts to requiring the applicant to not only be discreet upon returning to Bangladesh but not seek to reclaim the family business from the criminals who stole it. 

  20. In my view the applicant has not raised a point relating to jurisdictional error, even if I were to be satisfied that the application is not an abuse of process.  Dealing with the claim of the wrong application of the law to the facts, counsel for the respondent submits, and in my view correctly, that the applicant quoted the Tribunal's findings out of context.  The applicant had given evidence that he had spent some years living and working in Malaysia and in fact had worked for Malaysian Airlines but since he had returned to Bangladesh there had been only one incident in which he had encountered any problems even though they were problems of some seriousness relating to the criminals who had hijacked his family business.  The respondent submits that the Tribunal's determination, being a factual determination, did provide a proper basis for the Tribunal's finding.

  21. Whilst the applicant has attacked the use of the phrase; "primary motivating factor", this was only used by the Tribunal on one occasion and elsewhere the Tribunal used the phrase; "the essential and significant reason" or "essential and significant motivation".  It appears to me that the Tribunal was applying the correct test. 

  22. The applicant did not complain that the State of Bangladesh had tolerated or been complicit in the harm done to him and his family.  This had not been raised before the Tribunal and it did not so obviously arise on the material before the Tribunal as to require consideration with it.  See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263.

  23. Turning to the claim of the failure to consider the reality of a chance of persecution; the Tribunal did find that if the applicant avoided going near his family business premises he would not suffer harm from the activities of the criminal people who had taken his family business.  But this was an alternative finding to the finding that the harm claimed was not essentially or significantly motivated by a convention reason.  The Tribunal in fact found that the applicant had suffered harm but had suffered harm as a result of activities of criminals rather than for a convention reason. 

  24. In any event though, I am of the belief that the previous proceedings cannot be overlooked.  These proceedings were set out in the affidavit of Ben Cramer, dated 13th January 2006 and show that there had been prior proceedings which had been dealt with by the Federal Court. 


    The Court did not have the opportunity to hear argument on the merits of the case but that is due to the fact that the applicant did not attend Court before Allsop J to put those arguments.  The applicant's case was considered by Emmett J in dealing with the appeal or the application for leave to appeal out of time and the merits of the case, the likelihood of success, was a matter that his Honour considered.

  25. In my view, the applicant, whilst in this case he did attend the Tribunal, has not made out a case on the merits and his application should be dismissed.

  26. I might also add that when the applicant commenced proceedings in the High Court he named three respondents, the Minister, the Refugee Review Tribunal and Kim Rosser member of the Tribunal, as the third respondent.  I have earlier commented on the fact that there are a number of decisions such as Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 and also M1013 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 301 where it has been held that it is not appropriate to name an individual Tribunal member as a separate respondent and I propose to order that the third respondent, as a member of the Refugee Review Tribunal, should be removed from the proceedings. Otherwise, the application will be dismissed with costs.

  27. There is an application for costs in the sum of $4,250.00 on a party/party basis. That is inclusive of counsel’s fees and in my view it is within the scope of Sch. 1 of the Federal Magistrates Court Rules.


    I propose to order that the applicant is to pay the costs of the first respondent which are fixed at $4,250.00.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  27 January 2006

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