S1586 of 2003 v Minister for Immigration

[2006] FMCA 121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1586 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 121

MIGRATION – Application for summary dismissal – prior judicial review of first Tribunal decision – no judicial review of second Tribunal decision – no abuse of process. 

Migration Reform Act 1992 (Cth)
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001

Applicant S1174/2002 v Refugee Review Tribunal [2004] FCA 289
Applicant S1586 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 472
Seaculture International Pty Limited v Scholes (1991) 32 FCR 275
Worthley v England; Re Excel Finance Corporation Ltd (1994) 52 FCR 69
McDade v Attorney-General (the Federal Court of Australia unreported 1 May 1998
Second Life Decor Pty Limited v Controller-General of Customs (1994) 53 FCR 78
Chu Sing Wun v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538
Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198
SZGNO & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816

Applicant: APPLICANT S1586 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1250 of 2005

Judgment of: Barnes FM

Hearing date: 23 January 2006

Delivered at: Sydney

Delivered on: 23 January 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The notice of motion is dismissed.

2. That the matter be listed for final hearing before me at 10:15 on Wednesday, 1 March 2006. 

3. That the applicant file and serve any evidence and written legal submissions and a list of authorities on or before Monday 20 February 2006. 

4. That the respondent file and serve any evidence and written legal submissions and a list of authorities on or before Monday 27 February 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1250 of 2005

APPLICANT S1586 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter came before the court by way of a notice of motion filed by the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, seeking summary dismissal of an application filed by the applicant seeking review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant arrived in Australia in 1985.  In 1992 he applied for refugee status.  By operation of the Migration Reform Act 1992 this became an application for a protection visa.  The application was refused by a delegate of the respondent by decision notified to the applicant by letter dated 11 December 1992 (the first delegate’s decision).  The applicant sought review by the Tribunal.  On 1 March 1995 the Tribunal affirmed the delegate's decision (the first Tribunal decision.) 

3. On 10 April 1995 the applicant lodged another application for a protection visa.  That application was refused on 12 March 1996 (the second delegate’s decision).  The applicant applied to the Tribunal for review in April 1996.  On 2 December 1996 the Tribunal affirmed the second delegate's decision (the second Tribunal decision). 

4. On 20 December 1996 the applicant requested the Minister to exercise power under s.417 of the Migration Act 1958 (C’th) (the Act), in the applicant's favour in respect of the second Tribunal decision.  The Minister decided not to do so in June 1997.  In January 1998 the applicant again requested the Minister to exercise the power under

   
   

   s.417 of the Act in his favour in respect of the second Tribunal decision. By letter of 3 July 1998 the applicant was informed that the Minister had decided not to consider exercising that power in this case.

5. On 18 September 2000 the applicant sought judicial review of the first Tribunal decision in the High Court as a member of the Lie class action.  Pursuant to leave granted by the High Court the applicant filed an individual application seeking orders nisi in respect of the first Tribunal decision on 29 May 2003.  That application was remitted instanter to the Federal Court and dismissed by Emmett J on 20 February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289).

6. On 24 May 2004 the applicant sought judicial review of the first delegate's decision and the first Tribunal decision in this Court.

   
   

   The application stated that it sought review of the decision of the Tribunal of 27 November 1992.  The solicitors for the respondent wrote to the applicant by express post letter posted to him on 26 July 2004 noting that there was, as far as they were aware, no such Tribunal decision of that date.  The letter referred to the fact that the Tribunal made decisions on 1 March 1995 and 2 December 1996 and asked the applicant to let them know as soon as possible which was the decision of which review was sought. 

7. That application came before this Court for hearing on 7 October 2004. In my judgment (see [2004] FMCA 711 at [1]) I noted that the applicant had not responded to the letter of 26 July 2004 and had not filed written submissions by the time of the hearing. However at the commencement of the hearing before me the applicant indicated that he wished to seek review of the first delegate’s decision and the first Tribunal decision. I noted in the course of my decision that the second Tribunal decision was not the subject of the proceedings before me.

8. The applicant appealed from my decision to the Federal Court.  The appeal was dismissed on 26 April 2005 (see Applicant S1586 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 472). Branson J (at [7]) noted that the matter before the Court was an appeal from the decision of this Court in respect of the first Tribunal decision of 1 March 1995 and that the second Tribunal decision of 2 December 1996 was not the subject of those proceedings.

9. The present application for judicial review was filed on 13 May 2005 seeking that the decision of the Refugee Review Tribunal made

   
   

   2 December 1996 be set aside.  There are no grounds of review in that application.  However, in an affidavit sworn by the applicant on

   
   

   12 May 2005 and filed on 13 May 2005 the applicant stated that the decisions of this Court and the Federal Court had dismissed his application for review of the first delegate’s decision, that he had been refused a protection visa by a different delegate in 1996, and that the later delegate's decision had never been reviewed.  He claimed that he had wanted to apply for a review of it at the same time as he applied in respect of the 1992 decision (which in cross-examination he confirmed was the first delegate's decision) but at the time he was a detainee at Villawood Detention Centre and did not have access to his papers except for a copy of his protection visa application filed 7 April 1995.  He claimed that he decided that he would await the outcome of the review of that earlier decision before embarking on the later one.  This affidavit makes no reference to either Tribunal decision.   

10. The applicant (who is legally represented) did not comply with directions made at a directions hearing for filing and serving an amended application giving complete particulars of each ground of review by 22 June 2005.  Nor did the applicant file and serve any affidavit containing any additional evidence by 22 June 2005 as ordered.  The solicitor for the applicant accepted responsibility for the failure to comply with those directions.  He sought leave to file an amended application in Court and told the Court that he wishes to have the opportunity to file further affidavit evidence or other evidence before a hearing.  He sought that the matter proceed to final hearing. 

11. The amended application seeks review of the second Tribunal decision.  However it alleges a denial of natural justice by both the delegate’s refusal to grant the visa on 12 March 1996 (the second delegate’s decision) and by the Tribunal on 2 December 1996.  It also relies on other grounds, including a breach of the Migration Act 1958, a failure to grant a visa on compassionate grounds and that the Tribunal ‘erred’ in failing to make certain findings. 

12. The notice of motion filed on 12 July 2005 seeks summary dismissal of the application either on the basis the proceeding is frivolous or vexatious or because the proceeding is an abuse of process.  The written and oral submissions of the respondent addressed the second of those grounds.  The first was not addressed and is not established. 

13. The court has power to dismiss summarily proceedings that are an abuse of process.  In considering such an application I take into account the fact that the power is an exceptional power and one not to be lightly exercised.  A summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case, although I also accept what has been said in Seaculture International Pty Limited v Scholes (1991) 32 FCR 275 at 279 that the possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. (See generally Walton v Gardiner (1993) 177 CLR 378). The question of whether there is an abuse of process in a case such as this depends on the purpose of the applicant seeking the order of the court and the circumstances of the case. For an abuse to be found the offensive purpose should be, at the very least, the predominant purpose; Worthley v England; Re Excel Finance Corporation Ltd (1994) 52 FCR 69 and also see McDade v Attorney-General (Federal Court of Australia, unreported 1 May 1998). 

14. A proceeding is an abuse of process if it is foredoomed to fail or if, quite apart from its prospects of success, it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage beyond what the law offers:  Second Life Decor Pty Limited v Controller-General of Customs (1994) 53 FCR 78. However, there is also authority (Chu Sing Wun v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538) that an abuse of process is not constituted by a failure to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. Also see Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641.

15. This case is somewhat out of the ordinary.  It is not disputed that at no time has the applicant sought or had judicial review of the second Tribunal decision.  Nonetheless it is argued for the respondent that in all of the circumstances the proceedings have been brought as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers, having regard to the considerable delay that there has been between the making of the second Tribunal decision and the bringing of the present proceedings and the absence of a satisfactory explanation for such delay.  (I note that the Lie proceedings involved the first Tribunal decision and not the second Tribunal decision, so what Emmett J had to say in relation to the absence of a need for an explanation for delay for parties involved in the Lie class action has no application in relation to the second Tribunal decision.)  

16. The respondent also suggested that the Court should take into account the fact that the applicant had requested the Minister to exercise power under s. 417 of the Act and submitted that the taking of that course of action was indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law (see Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at 14 – 15 and SZGNO & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816).

17. It was contended that the applicant was clearly aware of the possibility of seeking judicial review of the second Tribunal decision because he brought judicial review proceedings in respect of the first Tribunal decision and suggested that his strategy of delaying the challenge to the second decision until the proceedings in respect of the first decision were complete demonstrated that he was attempting to maintain judicial review proceedings for as long as possible, rather than having a real complaint about the second Tribunal decision.  It was submitted that he could have challenged the second Tribunal decision in the previous proceedings, it having been brought to his attention by the solicitor's letter of 27 July 2004 that there was a need to identify the decision of which he was seeking review. 

18. The first respondent also pointed out that the application of 13 May 2005 contained no grounds of review.  The solicitor for the first respondent went through in some detail the grounds contained in the amended application, suggesting that there were significant difficulties in establishing each of those grounds, some of which sought, according to the respondent, merits review and another of which was unlikely said to be to succeed.  The solicitor for the applicant suggested that the ground that would be pursued by the applicant was essentially on a basis analogous to that considered by the High Court in the Lie proceedings.  However the precise basis on which such an argument might apply in the present case was not, as the solicitor for the respondent pointed out, clearly enunciated by the solicitor for the applicant. 

19. It is clear, however, that the essence of the ground is a claim of a denial of procedural fairness in relation to the second protection visa application and the second Tribunal decision, which has not been the subject of any prior judicial review proceedings. 

20. It is the case that the applicant has had a considerable amount of time to challenge the second Tribunal decision. He provided an explanation that he wanted to await the outcome of the review before he took the present proceedings. As expressed in the affidavit of 12 May 2005 this is not an entirely satisfactory explanation, because it refers to the delegate's decision and not the Tribunal decision, despite the fact that that affidavit was prepared at a time that the applicant had legal representation. However, as clarified in oral evidence, it indicates, at its broadest, an intention that the applicant wanted to wait until all of the proceedings possible in relation to the first set of proceedings were resolved. In these circumstances I am not persuaded that I should infer that the requests under s.417 of the Act were indicative of a decision by the applicant to abandon any course that would seek to challenge the second Tribunal decision.

21. On balance, I am not persuaded that the proceedings should be dismissed summarily as an abuse of process.  As I have indicated this is a unique situation.  There were two decisions of delegates and two Tribunal decisions.  While the effect of delaying a judicial review application in relation to the second Tribunal decision until after judicial review was completed in relation to the first delegate's and first Tribunal decision is that there has been an extension of the applicant's time in Australia, I am not persuaded that it has been established that an improper purpose of the applicant was the ‘predominant’ purpose such that the court ought to make the order sought.  There has been no judicial review of the second Tribunal decision, let alone on the ground of procedural fairness (see M16).  The court has a discretion whether or not to dismiss proceedings summarily as an abuse of process.  In the particular and unique circumstances of this case, I am not minded to so dismiss the proceedings.  However, I consider that given the time that has elapsed since the decisions in issue in this case, the final hearing should proceed as soon as possible.  I foreshadowed that to the parties and I indicated that I could to list the matter for final hearing in the week commencing 27 February 2006. 

22. Accordingly, the notice of motion filed on 12 July 2005 is dismissed.  I will order that the matter be listed for final hearing.  I will consult each of the parties as to a suitable date in that week commencing

    
    

    27 February 2006.

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 February 2006