S1424 of 2003 v Minister for Immigration
[2005] FMCA 861
•8 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1424 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 861 |
| MIGRATION – Visa – protection visa – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa to the Applicant. PRACTICE & PROCEDURE – Abuse of process – where previous proceedings have been completed in the Federal Court. |
ApplicantS1174 of 2002 v Refugee Review Tribunal (2004) FCA 289.
Lie v Refugee Review Tribunal and Others, (S89 of 1999).
Walton v Gardiner (1993) 177 CLR 378
SZAWW and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 479
NALE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 366
| Applicant: | S1424 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 849 of 2005 |
| Delivered on: | 8 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Hanstein |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed. The Application is not competent.
The Applicant is to pay the Respondent’s costs on a party-party basis fixed in the sum of $2,200.00.
The Applicant is restrained from filing any further application seeking review of the decision of the Refugee Review Tribunal on 21 July 2000 and handed down on 3 August 2000 without leave of this Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 849 of 2005
| S1424 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia on 18 September 1997. On the 30th of that month, he applied for a Protection (Class AZ) visa, claiming a well-founded fear of persecution both by Hindu nationalist police officers and agents of the Muslim League in India. On 25th November 1997, a delegate of the Respondent Minister refused to grant a protection visa to the applicant. Accordingly, the Applicant applied for a review of that decision on 19th December 1997.
The Applicant attended a hearing of the Refugee Review Tribunal on 9th June 1999 where he gave oral evidence. He also provided written submissions. The Refugee Review Tribunal did not accept the Applicant's claims about the nature and extent of his political involvement or his account of the arrests and the detentions which he said had occurred between 1980 and 1990. The Tribunal did not accept anything about what the Applicant claimed had occurred after he returned to India from staying in Germany for approximately five and a half years in 1996.
The Tribunal did not accept his evidence about the circumstances that appear to have led to his being issued two passports in two different names. The Tribunal was not satisfied that the Applicant had shown that there was a real chance that he would face persecution for a Convention reason if he were to return to India. The Tribunal affirmed the decision not to grant a protection visa.
The Applicant then applied to the Federal Court for a review of the Tribunal's decision. The Federal Court dismissed that application on 13th December 2000. The Applicant did not lodge an appeal against that decision. I have been provided with a copy of a decision of Lindgren J in the Federal Court on 13th December 2000. Although the Applicant did not appeal against the decision of the Federal Court, he did make representations to the Minister at the time, seeking the exercise of the Minister's discretion under s.417 of the Act. The Minister eventually declined to exercise that power. The letter to the Minister was dated 11th January 2001.
On or about 20th June 2001 the Applicant became a member of High Court proceedings known as Lie v Refugee Review Tribunal and Others, (S89 of 1999). This was known as the Lie class action. The Applicant's solicitor at the time, one Adrian Joel, filed an application for an order nisi and an affidavit on behalf of the applicant in the High Court on 29th May 2003. That same day, the High Court remitted that application to the Federal Court. On 20th February 2004, Emmett J of the Federal Court dismissed this application along with 707 other applications. I understand that his Honour's reasons are set out in ApplicantS1174 of 2002 v Refugee Review Tribunal (2004) FCA 289.
On 12th March 2004 the Applicant filed an application in the Federal Magistrate's Court seeking review of the Tribunal's decision. The Applicant filed a notice of discontinuance in those proceedings on
5th January 2005. The Applicant had again written to the current Minister for Immigration and Multicultural and Indigenous Affairs on 17th November 2004, seeking that the Minister should exercise her power under s.417 of the Migration Act. That application has since been declined.
The Applicant then commenced these proceedings on 7th April 2005 after he had become an inmate of the Immigration Detention Centre at Villawood. The Applicant told the Court today that he did not become aware that his visa had expired until he was placed into detention.
As such, he had no alternative but to commence these proceedings in the Federal Magistrates Court. The Applicant has since been granted a bridging visa in connection with this application on 25th May 2005. Accordingly, he was released from immigration detention.
I have had the opportunity of reading the written outline of submissions prepared by the solicitors for the Respondent. I have also read two affidavits by Sharon Elizabeth Hanstein, sworn 28th April 2005 and
7th June 2005. I have also heard a lengthy submission from the Applicant given with the aid of an interpreter in the Hindi language. The Applicant is not legally represented.
I have asked the Applicant a number of questions about his submissions, which he has answered. The Applicant reiterated his claim that the Refugee Review Tribunal did not give proper consideration to his case on many issues. He claimed that the Tribunal did not consider issues about his lengthy stay in Germany, although he had provided the Tribunal with some documents about that. He said that he was still waiting for documentation to come from Germany in connection with his case, which seems rather surprising, since he left Germany in 1996.
He said that he met an Australian person named Philip Brady who is active in radio and television, who would be prepared to write a letter of support for him. The Applicant said of his earlier application to the Federal Magistrates Court that he made a mistake when he discontinued that application. He provided details of his correspondence with various Ministers and submitted letters of acknowledgement dated 15th February 2001 and 6th December 2004. Those documents were admitted without objection.
The Applicant told the Court that he left Germany in 1996 because his father had suffered mental problems and thought that the Applicant had actually been killed. He said that his mother also became sick. He said that he had to go to Germany because of the circumstances in India at the time. His brother had been murdered in about the middle of 1989 and he left India for Germany, apparently without telling his father of his whereabouts. This apparently contributed to his father's unfortunate mental state. It appears that the Applicant did not send any letters or other communications to his father over five and a half years telling him that he was safe in Germany.
The Applicant said that he was really happy when he was in Germany and had travelled there lawfully on his own passport. He did say that when he made arrangements to leave India to travel to Germany, he left the arrangements to the agent and did not know where he was going. He travelled to Germany by way of Hong Kong and Russia. He applied for a visa of some sort in Germany, presumably similar to a protection visa, and that application had not been considered by authorities in Germany when the Applicant left to return to India.
The Applicant said that he returned to India because of the illnesses of his parents. He told the Court today that he left India in 1997 because his life was still in danger. He said he had to leave the country immediately and this time he travelled on a false passport. The agent whom he consulted did not tell him which country he was travelling to but tried his best so that the applicant could leave the country. The Applicant said that which country was his destination was not important and he had no knowledge of where he was going. He said that he did not know until he left India or at least had passed through immigration and presumably was about to board the aircraft. He said the agent travelled with him and there were two or three other people in the group.
I would have to comment that the Applicant's accounts of his departures from India, first for Germany and later for Australia, seem rather implausible and it seems to be odd that he could make arrangements to leave the country on two occasions without knowing his destination.
The Applicant told the Court that he had given oral evidence to the Refugee Review Tribunal and had made a written submission. He said there had been some incidents in the past but he was too embarrassed to talk fully about them. He said that when he mentioned these incidents, the Tribunal member screamed at him. So, he drew the inference that she did not want to hear about them. He said that the Tribunal did not give him any opportunity to put his case but went on to say that they did listen to his claims but did not believe his claims.
I have had the opportunity of reading through the judgment of Lindgren J in the Federal Court dated 13th December 2000. I note that in paragraph 13 of his Honour's judgment he refers to the Applicant having applied in Germany for protection as a refugee but was, in fact, refused. I note also, in paragraph 28 of his Honour's judgment, that the Applicant said to his Honour that the presiding member of the RRT had screamed at him. His Honour noted that the tape recording of the hearing before the RRT was not in evidence, nor was a transcript of those proceedings.
His Honour also noted that the Applicant had referred to the fact that the Tribunal had not taken into account photo ID that he had provided, although his Honour went on to say in paragraph 30:
This matter was dealt with by the RRT in its reasons for decision.
The decision also goes on to say at paragraph 31:
No doubt the Applicant is not at all content with the conclusion reached by the RRT in relation to this issue but all that matters for present purposes is that the RRT did deal with it.
At paragraph 36 of the decision, the Court noted that the Applicant produced documents which came into existence after the RRT had given its decision. The Court said that it was clear that the documents were irrelevant to the grounds on which the Court was permitted to set aside the RRT's decision and that those documents were intended to establish certain facts in support of the Applicant's allegations. The Court suggested that if the Applicant wished to take those matters further, he could submit that further evidence to the Department so the Minister at the time could consider exercising his power under s.417 of the Act.
The Applicant did not appeal against the decision of the Federal Court. He said that he made representations to the Minister as he had been directed or advised to do by the Court in paragraph 36 of the judgment. It is quite clear from paragraph 36 of his Honour's judgment that all his Honour was referring to was the existence of further evidentiary material which the Applicant wanted to have taken into consideration but had not been available to the RRT. At no stage was his Honour suggesting that the applicant should refer his entire case to the Minister again or that the Applicant should not follow the normal processes of the law in pursuing his claim.
Indeed, the Applicant did join the Lie class action but his individual application was later dismissed by the Federal Court. The Applicant then applied to this Court but later discontinued that application, choosing instead to seek further Ministerial intervention under s.417. The Applicant said this was a mistake.
In support of the Respondent's claim that his current application should be summarily dismissed as an abuse of process, the Respondent referred the Court to the decision of the High Court of Australia in Walton v Gardiner (1993) 177 CLR 378, where Mason CJ and Dean and Dawson JJ referred to a stay of proceedings, saying:
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 Respondent also referred me to the decision of Driver FM in SZAWW and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 479, who dealt with the question of whether it would be an abuse of process for an applicant to be permitted to pursue an expanded application or any application in respect of the same decision of the RRT. His Honour, in the circumstances of that case, formed the view that it would be, noting that at the time of the earlier proceedings by the applicants in that case, the grounds of review available were no more restricted than the grounds of review available in this Court.
The Respondent submits that it is possible to infer from the background to proceedings of this nature that the application has been made for the purpose of delay to extend the applicant's period of lawful stay in Australia. The Respondent notes that an inference of this nature was drawn by the Court in NALE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 366.
In the case before me, it may be coincidental that the Applicant obtained a bridging visa and was released from immigration detention on 25th May 2005 on the basis that he had commenced these proceedings for judicial review. The Applicant, however, did tell the Court today that when he was taken into detention and found out, so he said, that his visa had expired, that all he could do was bring an application to this Court.
In my view, this is an appropriate case for summary dismissal, although in the process of hearing these proceedings, I consider that I have heard the Applicant's application on its merits, such as they are.
I am satisfied that the application is an abuse of process. It is seeking to re-litigate matters that were already litigated before the Federal Court on 13th December 2000. The Applicant had the opportunity of attempting to continue his later proceedings in the Federal Court when they were remitted from the High Court. The Applicant had the opportunity of attempting to continue his earlier proceedings in the Federal Court rather than discontinuing them, although I am of the belief that that application would have been unsuccessful.
The application is not competent as it has been commenced well outside a period of 28 days from the time that the Applicant was made aware of the decision of the Refugee Review Tribunal, although I am aware that the Respondent gave certain undertakings at the time of the Lie class action. Whilst I will not go behind the Lie class action, I note that the Applicant's second application to the Federal Court was dismissed by Emmett J on 20th February 2004 and that the Applicant's first application to this Court was commenced on 12th March 2004 and discontinued on 5th January 2005. These proceedings were not commenced until 7 April 2005. It can clearly be seen that even disregarding the Lie class action, the application is well outside the time prescribed by s.477 of the Migration Act.
I should make it clear that the primary reason for my dismissing this application, however, is that it is quite clearly an abuse of process. The application is dismissed. The application is not competent.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 June 2005
0