S1280 of 2003 v Minister for Immigration - [2004] FMCA 742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1280 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 742

MIGRATION – Procedure – application for summary dismissal before applicant ordered to give particulars – possibility of Muin ground of review – Court not satisfied that application was an abuse of process – summary dismissal application premature.

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

APPLICANT S1280 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1543 of 2004

Delivered on:

11 October 2004

Delivered at:

Sydney

Hearing date:

11 October 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Respondent:

Ms A Gibson

ORDERS

Interlocutory application filed 23 August 2004 dismissed.
Direct the Minister to notify the applicant that his application will be listed for directions including the setting down of the matter for a final hearing. The direction will be listed on 26 October 2004 at 10:30 AM at the Law Courts Building in Queen’s Square.
Direct the Minister to inform the applicant that failure to attend, or present medical evidence of an inability to attend, may result in his application being dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1543 of 2004

APPLICANT S1280 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

These reasons were revised from the transcript of oral reasons I gave on 11 October 2004, when refusing the Minister’s motion for summary dismissal in this matter. It is not my practice to do this for interlocutory applications in the absence of a request in writing. In the present matter such a request was first received on 27 October 2004, when the Court received a copy of a letter which had previously been sent to an incorrect facsimile number.
At a directions hearing on 26 October 2004, the respondent Minister foreshadowed the request and also requested that I should allow further time under O 52 r 5(2)(b) of the Federal Court Rules for the Minister to file an application for leave to appeal. At that time, the 21 day time limit had not expired, and the Minister had not indicated whether leave was intended to be sought nor on what possible grounds. I declined to give such an extension merely on the possibility that the Minister might decide to appeal, since I consider that this Court should be slow in migration matters to extend appeal times from interlocutory decisions merely at the request of either party and in the absence of any apparent case for obtaining leave to appeal and any statement of intent to appeal. I pointed out that the Minister could file a holding application pending receipt of my revised reasons or, if instructions to appeal were received out of time, could seek an extension of time from the Federal Court when seeking leave to appeal. In such an application, the Court would be better able than I to consider the merits of extending time.
In the following reasons, I shall refer to the applicant for summary dismissal as “the Minister” and to the respondent to the motion as “the applicant” – ie. since he is the applicant in the substantive proceedings.
The substantive application was filed by the applicant on 25 May 2004, and sought judicial review of the decision of the Refugee Review Tribunal given on 24 August 2000. He commenced these proceedings after losing in an application before Jacobson J on 4 May 2004 for leave to appeal against a judgment of Emmett J given on 20 February 2004.
Emmett J's judgment was given in this matter and in numerous other matters and is entitled Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289. In that judgment, Emmett J was dealing with hundreds of cases remitted by the High Court being applications for orders nisi by persons who were represented parties in the High Court class action of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. His Honour dismissed all the proceedings where the affidavit in support of the application for orders nisi did not give particulars showing a ground of judicial review. When doing so, his Honour declining to order discovery of Departmental documents to assist the location of grounds of review. In paragraphs 28 and 29 Emmett J noted that his order would not constitute any bar or estoppel against appropriate relief if grounds were established and noted:
The Minister has assured the Court that there would be no submission made on behalf of the Minister in relation to this application or any of the other applicants present before me that the refusal of an order nisi could constitute a bar to the commencement of a fresh proceeding claiming the same relief.
In effect, that is what the present applicant has done and has done so in a timely manner. His application in this Court does not contain particulars of general grounds of judicial review that have been listed. However, at least one of them may conceivably give rise to a valid argument, being:
Tribunal did not give an opportunity for the applicant to comment on the material upon which the Tribunal relied when making its decision. (the expression of this has been corrected by me)
There is no evidence before me that the Minister has ever sought particulars from the applicant in relation to this ground of review, and at this stage I am not prepared to draw a conclusion that it is lacking in all merit. Had the matter proceeded according to the usual directions made by the Court in migration matters, the applicant would have been directed to provide particulars, and non-compliance action may have followed if they were not observed.
Rather, at the first hearing date before a Registrar, the Minister sought an immediate appointment for a motion for summary dismissal. The applicant was then notified of today’s listing by a letter from the registry sent to him on 2 September 2004.
In the motion, the Minister seeks that the application be dismissed under Rule 13.10(c) of the Federal Magistrates Court Rules on the ground:
the proceeding or claim for relief is an abuse of the process of the Court.
Shortly before the motion was called on for hearing, I was given a facsimile from the applicant which stated: “I have a hearing today 11.15 AM Federal Magistrates Court. I am sick today so I cannot come today for hearing if possible could you change my hearing date please.” This was not a proper application for adjournment on medical grounds, and I decided to proceed to consider the merits of the Minister’s motion in the absence of the applicant.
After hearing submissions from the Minister’s representative, I concluded that I was not prepared at this stage in the proceedings to decide that the application was an abuse of process because it is lacking in merit. I am not satisfied according to the demanding standard identified in the relevant authorities (e.g. set out at [41,860.5] of Butterworths’ Practice and Procedure of the High Court and Federal Court of Australia) that the pleaded grounds for review are:
Clearly untenable and cannot possibly succeed.
Hopeless and no chance of success.
or:
Hopeless and bound to fail.
In this respect, I find that there is no previous judgment of a Court in which this applicant's claims for judicial review have been ruled upon, and no estoppel or res judicata which would make his present application obviously hopeless. This is conceded by the Minister’s representative before me.
Instead, I am asked to infer that the application is an abuse of process because it is purely for a collateral purpose, that being to extend the applicant’s stay in Australia. This is an allegation easily made in migration matters, but not easy to establish at the present stage of these proceedings, since in my view it requires the establishment of patent lack of merit in the judicial review proceeding or some other aspect of the case that shows that the applicant is aware that it has no merit. As I have indicated, I cannot conclude the first of these and, in relation to the second, I am not ready to infer that the applicant is aware that he has no ground having merit.
In this respect it is significant that the Minister has allowed the applicant to be a represented party in High Court proceedings and then in Federal Court judicial review proceedings without bringing a motion in those courts such as has been brought today.
The submissions of the Minister before me have pointed to an earlier proceeding in which the applicant sought judicial review of the same Tribunal decision, which was listed before Beaumont J on 14 December 2000 and was dismissed apparently for a failure to attend a court listing. There are no reasons available to show the extent to which Beaumont J did or did not address the merits of the judicial review application.
The fact that a proceeding had been dismissed for non attendance at a hearing may, indeed, require some explanation of the subsequent delay in commencing proceedings. However, as I have noted, the applicant after the dismissal of the proceedings by Beaumont J within a month or two joined the High Court class action in Nancy Lie rather than commencing fresh proceedings in the Federal Court to set aside the default judgment. I do not conclude that these actions show an awareness of a futile action on the part of the applicant to the extent required to order summary dismissal of the present application.
In my view the proper course for this matter is for it to be brought on for a directions hearing where the applicant may be ordered to give particulars of his grounds of review. He may also need to provide further explanations for his delay before joining the Nancy Lie action. However, I am not prepared to order the summary dismissal of the application today.
I should also note that the respondent's motion was brought on today pursuant to an interlocutory application that was foreshadowed at the first hearing date on 31 August 2004. As I have noted above, no directions were given by the Registrar on that occasion to the applicant to give particulars or to prepare his arguments further for a final hearing, but he was directed to:
"File and serve any affidavit evidence in reply to the respondent's notice of motion on or before 20 September 2004".
The Minister’s representative pointed out that that no affidavit was filed by the respondent. However, in the circumstances I am not prepared to infer from this a lack of merits or bona fides in the substantive application sufficient for me to conclude that the application is an abuse of process.
I also note that the Minister's counsel submitted that the non attendance of the applicant today was evidence of his lack of bona fides. However, I am not prepared to draw that conclusion from the applicant’s facsimile to the court set out above.
For the above reasons, I dismiss the Minister's interlocutory application.
I direct that the Minister notify the applicant that his application will be listed on 27 October 2004 at 10.30 for directions, including setting the matter down for a final hearing.
I also direct that the Minister inform the applicant that if he does not attend nor present medical evidence of an inability to attend that his application may be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 3 November 2004