S1756 of 2003 v Minister for Immigration
[2004] FMCA 1082
•8 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1756 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1082 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory application – representative proceedings in the High Court – order nisi – Federal Court hearings – abuse of process – interlocutory application upheld – application dismissed. Migration Act 1958 (Cth) Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | APPLICANT S1756 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1307 of 2004 |
| Delivered on: | 8 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 6 May 2004 in this matter be dismissed as an abuse of process.
The applicant pay the respondent’s costs fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1307 of 2004
| APPLICANT S1756 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a notice of motion by the respondent in relation to the proceedings that were filed in this Court on 6 May 2004. The respondent seeks summary dismissal of the matter pursuant to Rule 13.10 of the Federal Magistrates Court Rules as an abuse of process, as frivolous or vexatious or because it discloses no reasonable cause of action.
The applicant was the subject of a decision of the Refugee Review Tribunal (the Tribunal) on 4 November 1999 (in fact the decision is dated differently in two places, 4 November 1999 and 18 October 1999). This decision affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant filed proceedings in the Federal Court under the old provisions in Part 8 of the Migration Act 1958 (Cth) (the Act) on
6 December 1999. The matter was dismissed apparently without a hearing on 31 July 2000 by Katz J. Mr Markus for the respondent told me, and this is not disputed by the applicant, that the applicant had indicated his wish to withdraw from the proceedings, but the respondent preferred orders dismissing the application. As I said, those orders were made on 31 July 2000.
At some stage the applicant became a member of the representative proceedings in the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 matters.
Justice Gaudron in the High Court made orders on 25 November 2002 in relation to these matters. Following this, on 30 May 2003 the applicant through his then solicitors filed an affidavit and annexed a draft order nisi in the Sydney Registry of the High Court. This matter was then remitted to the Federal Court. A number of grounds are set out in the draft order nisi including ones relating to procedural fairness, failure to follow required procedures and improper exercise of power.
On 30 April 2004 Emmett J made orders refusing the application for an order nisi. In his reasons he said:
The affidavit discloses no evidence for any of the relief claimed in the draft order nisi. Following remitter of the proceedings to this Court, no further step has been taken by the applicants to endeavour to demonstrate a cause of action. Each of the matters is before me for call over today. Mr Bharati indicated that he required further time to get instructions. He was unable to indicate what would happen during that time or the nature of any evidence that was likely to be filed.
The proceedings were instituted in this Court on 6 May 2004. On
12 August 2004 a registrar made orders which, amongst other things, required the applicant to file and serve an amended application giving complete particulars of each ground relied upon and any additional affidavit evidence by 12 October 2004.
The applicant filed an amended application on 15 October 2004. I note that it refers to a decision of the Migration Review Tribunal rather than the Refugee Review Tribunal. That application sets out a number of alleged grounds. There are firstly two unnumbered paragraphs and then there follow 12 numbered paragraphs.
Mr Markus for the Minister has taken me through these paragraphs and asserts that they do not disclose any reasonably arguable cause of action. It is correct that on their face there do not appear to be any appropriate legal grounds relied upon. But even if one can infer from the document a number of legal grounds which may in proper circumstances found an application in this Court, such as failure of procedural fairness, the application is devoid of any supporting particulars. Furthermore, the applicant has not filed any evidence as required by the orders of 12 August 2004.
In Walton v Gardiner (1993) 177 CLR 378 the High Court said at paragraph 23:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. 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 foredoomed to fail … 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
In my view the current application before the Court, that is the amended application, is foredoomed to fail. Furthermore, given the history of the litigation and the time period since the decision of the Tribunal was made in November 1999, over five years ago, it would be oppressive for this application to be allowed to continue. This is notwithstanding the submissions that the applicant made to me which essentially related to his lack of resources and his concern about the possibility of returning to Bangladesh.
The applicant also said that he was not able to get legal assistance. As I indicated, it is over five years since the Tribunal decision was handed down. Since that time he has been at various stages represented by a lawyer and on another occasion assisted by a migration agent. I do not accept that within that time it would have been impossible for him to properly identify grounds for judicial review in this Court of the decision of the Refugee Review Tribunal.
In the circumstances I propose to allow the interlocutory application.
I therefore dismiss the principal proceedings under Rule 13.10(c) as an abuse of the process of the Court.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 8 March 2005
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