SZBNW v Minister for Immigration

[2004] FMCA 436

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBNW v Minister for Immigration [2004] FMCA 436

MIGRATION – Application for summary dismissal of application to review decision of Refugee Review Tribunal – whether collateral purpose – whether abuse of process – whether discretion to dismiss application should be exercised.

Migration Act 1958

SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Salemi v Minister for Immigration & Ethnic Affairs (1976) 137 CLR 388
Walton v Lampard (1993) 177 CLR 378
Culture International Pty Limited v Scoles (1991) 32 FCR 275
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
Deangrove Pty Ltd (Receivers and Managers appointed) v Commonwealth Bank of Australia [2001] FCA 173
SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Walton v Gardiner (1993) 177 CLR 378
Rogers v The Queen (1994) 181 CLR 251
Johnson v Gore Wood & Co [2002] 2 AC 1
Roser v Immigration Review Tribunal (1992) 28 ALD 182
M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA
Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126
Daniel v MIMIA [2004] FCA 21
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Les Roser v Immigration Review Tribunal (1992) 28 ALD 182
Williams v Spautz [1992] 107 ALR 635
Metall und Rohstoff v Donaldson Lufkin and Jenrette Inc (1990) 1 QB 391
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255
Second Life Décor Pty Limited v Controller General of Customs (1994) 53 FCR 78
Australian Building Industries Pty Limited v Stramet Corp Limited FCAFC QG 122/97, 1 December 1997 unreported
Chu v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538

Applicant: SZBNW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2034 of 2003

Delivered on: 11 August 2004

Delivered at: Sydney

Hearing date: 14 May 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr M Wigney

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2034 of 2003

SZBNW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the respondent seeking an order that an application for review of a decision of the Refugee Review Tribunal (the Tribunal) filed in this Court on 1 October 2003 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules. The respondent’s application was filed on 16 April 2004. It claims that the proceedings are vexatious or an abuse of process or that no reasonable cause of action is disclosed. In the alternative the respondent seeks that the application filed by the applicant on 1 October 2003 be stayed pursuant to Rule 13.02(3) on the basis that an order for costs has been made against the applicant in these proceedings and the applicant has brought further proceedings on the same or substantially the same matter.

2. The background to this application is that the applicant, who is a citizen of India, visited Australia for a month in March 2000, returned to India and then most recently arrived in Australia on 29 April 2000 with her two year old son.  On 12 May 2000 the applicant and her son lodged an application for protection visas with the respondent.  This application was refused and on 13 March 2002 Tribunal handed down a decision affirming the decision of the respondent not to grant the protection visas. 

3. The applicant claimed to fear persecution because of her atheism and her political activism in the Congress Party.  Her claims are contained in a 1½ page statement provided in connection with her application for a protection visa.  Her application was refused by a delegate of the respondent on 23 May 2000.  In her application for review by the Tribunal she stated that her reason for making the application was that the decision was totally based on assertion and she was not satisfied with it.  On 14 January 2002 the Tribunal wrote to the applicant (and a copy was sent to her migration agent Mr Haque) advising that it had looked at all the material relating to her application but was not prepared to make a favourable decision on that information alone and inviting her to attend a hearing on 12 February 2002.  The applicant did not attend the hearing.  No further information or evidence was submitted in support of her claims. 

4. In its reasons for decision the Tribunal had regard to independent country information in relation to the then current political situation and violence in a religious context in India.  There were no reports or information available to the Tribunal commenting on attitudes towards atheists in India.  The Tribunal found that there was no evidence to support the applicant’s contention that she was victimised because of her atheism.  Nor was there any information available to it to indicate that atheists had been targeted generally or targeted by Hindus.  The applicant had claimed that on 12 December 1999 she was abused by a group of Trinamul Congress members because of her atheism and because she led demonstrations against them.  The Tribunal found no reports or information to indicate that demonstrations by any political group were made against Trinamul Congress in West Bengal in or about December 1999 (although independent information did indicate violent conflict had occurred between Trinamul members and the CPI-M (the Indian Communist Party) some months earlier in 1998).  There was nothing in the history of the Trinamul Congress to indicate victimisation of people for holding minority beliefs.  The applicant also claimed that because of her political activism in the Congress Party she was targeted by the CPI-M.  There was no information or evidence in her application to indicate that she was such an activist.  The Tribunal had regard to independent information indicating that there had been a slump in the Congress Party’s political fortunes such as to make it improbable that any such demonstrations would have generated much interest either by the government or indeed by any other political party.  The Tribunal found further that the CPI-M (the then current state government) did not have a history of religious persecution, being more concerned with the reform of economic policy.  It found it highly improbable that the applicant, as a barely 22 year old of no particular experience except of being a beautician and a young mother, would have the organisational skills to rally a public demonstration and ‘lead’ it against an incumbent government.

5. Finally the applicant had claimed that the BJP, the Trinamul and the CPI-M made a false prosecution against her.  She did not provide any details.  The Tribunal had regard to the fact that she had had no difficulty obtaining an Australian visa and found that she was able to leave India freely on two separate occasions despite the claim that three political parties (one of which was an incumbent government) had allegedly initiated a prosecution against her.  The Tribunal was not convinced on the evidence before it that the applicant had any sort of political profile to be of interest to anyone including the authorities or political parties.  It was not convinced on the evidence before it that the applicant’s claims were genuine.  It found no foundation for her claims that she would face persecution if she returned to India.  It found no evidence, other than the allegations themselves, to indicate that anything had happened to the applicant because of her alleged atheism or political activism.  It found that her fear was not based on fact and was not well founded. 

6. On 8 April 2002 the applicant filed an application in the Federal Court seeking judicial review of the decision of the Tribunal.  The application contained general and unparticularised grounds.  By 15 August 2002 the applicant had received advice from a lawyer under the Federal Court Pilot RRT Legal Advice Scheme.  The application was listed for hearing on 4 October 2002.  On 1 October 2002 the applicant signed a notice of discontinuance of the proceedings.  The discontinuance was by consent.  This notice was filed on 3 October 2002 under Order 22 Rule 2 of the Federal Court Rules.  The applicant undertook to pay the respondent’s costs of $1,350 by instalments of $50 per month.  She does not dispute the respondent’s claim that she had made only three payments of $50 in part payment of the respondent’s costs by the time of this hearing. 

7. On 30 October 2002 the applicant’s migration agent sent a letter to the respondent Minister requesting that he exercise his discretion under s.417 of the Migration Act 1958 to grant the applicant a visa. On 4 April 2003 the respondent advised the applicant by letter sent to her migration agent that he would not exercise his discretion under s.417 of the Act.

8. On 30 April 2003 the applicant filed a draft order nisi in the High Court challenging the respondent’s decision not to exercise his discretion.  On 25 August 2003 Heydon J dismissed the application for an order nisi. 

9. On 1 October 2003 the applicant filed the application in this Court seeking judicial review of the decision of the Tribunal to refuse to grant her a protection visa.  The application is in identical terms to the application filed in the Federal Court on 8 April 2002 save that it adds an additional ground (ground 6) namely:  “A jurisdictional error was [sic] occurred in the RRT decision”. 

10. On 28 January 2004 the Court ordered the applicant to file any amended application and any evidence upon which she proposed to rely on or by 20 April 2004.  No amended application was filed by the applicant, although in the course of the hearing today her Counsel tendered a copy of an amended application which he foreshadowed that he proposed to file. 

11. The applicant swore an affidavit on 11 May 2004 that was filed in these proceedings. It contains a chronology of proceedings. She attested that she did not have money to engage a lawyer at the time she filed an application in the Federal Court and that following advice from a lawyer under the RRT Legal Advice Scheme she decided to withdraw her application and make a submission to the Minister under s.417 of the Migration Act 1958. Her migration agent prepared the submission. She was told that her subsequent High Court application had ended without the Court considering whether there was an error in the Tribunal decision. She wanted a Court to decide whether there was a mistake in the Tribunal decision.

12. The applicant was cross-examined by Counsel for the respondent.  She told the Court that she knew what was written in her affidavit because she had initially written it in her own language and then given it to one of her friends to translate.  After further questioning she clarified that the friend in question was her migration agent who had advised her from the time of her initial application for a protection visa.  She claimed that her agent, Mr Haque, had typed up her words and read them back to her before she signed it.  However she was unable to give the Court a full account of what was contained in her affidavit.  She agreed that at the time she filed her application in the Federal Court in April 2002 she had consulted Mr Haque who advised her to file the application, which she made so that she could stay in Australia.  She hoped that something would happen after filing such documents.  She also gave evidence that she recalled seeing a barrister under the Pilot Advice Scheme, that he gave her legal advice that her case was ‘hopeless’ in about August 2002 and that she kept the proceedings on foot until the day before the matter had been listed for hearing.  She said that she could not recall properly why she discontinued the Federal Court proceedings the day before the hearing but conceded that ‘maybe’ she had discontinued the proceedings because she knew she would lose the case.  She acknowledged that if she lost the case she would not be able to stay here and that ‘most probably’ it was correct that she knew she was going to lose the case in the Federal Court. 

13. She agreed that after she discontinued the Federal Court proceedings she spoke to Mr Haque again and that he sent a letter on her behalf to the Minister asking him to allow her to stay in Australia.  She was asked whether she understood that nothing in that letter said that the decision of the Tribunal was wrong.  She said that she did not remember what was in that letter.  She said that she did not recall whether she obtained legal advice before she commenced the High Court proceedings but she did get advice from Mr Haque.  She could not remember and was not able to say the point or purpose of the argument she was raising in the High Court.  She agreed that she filed those proceedings so that she could stay longer in Australia.  She confirmed that she was still on a bridging visa and that she knew that as long as she had legal proceedings on foot she could keep the bridging visa and that this was the only reason she had commenced the High Court proceedings.

14. The applicant said that maybe she had gone to see Mr Haque after she became aware that the High Court had dismissed her application.  She could not recall who completed the application filed in this Court and then suggested that her brother had filled out the form.  When asked what she understood to be the point or purpose of the argument she was raising in this Court she said it was to be able to stay here.  She confirmed that this was because she understood that she was on a bridging visa and that she would lose that visa if she did not have any legal proceedings on foot.  She claimed that her brother had provided the information that constituted the grounds in the application for review and agreed that the first five grounds in the present application were virtually the same as in the earlier Federal Court application.  She confirmed that, apart from ground six, the grounds she raised in this Court were exactly the same as the grounds that the barrister had advised her were hopeless and doomed to failure in the Federal Court.  When asked what was the point of filing this application using five grounds that had been foredoomed to fail in proceedings which she had discontinued she said that she would have a problem if she had to go back to her country and that she had applied to the Court in the hope that something may happen.  She said that she had to think of something because she could not go back to her country.  When asked what she understood by the ground that a jurisdictional error had occurred in the RRT she indicated that she thought they would look into her case again properly. 

15. The respondent seeks summary dismissal of these proceedings under Rule 13.10 of the Federal Magistrates Court Rules. 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 (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at [91], Salemi v MIEA (1976) 137 CLR 388; Walton v Lampard (1993) 177 CLR 378). The power to dismiss a proceeding for an abuse of process is “an exceptional power which ought to be sparingly exercised and only in exceptional circumstances”: SeaCulture International Pty Limited v Scoles (1991) 32 FCR 275 at 279. The onus of satisfying the Court that there is an abuse of process lies on the respondent as the party alleging it. The Court has power to “prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”:  Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536 per Lord Diplock (also see Walton v Gardiner (1993) 177 CLR 378 at 393). The question of whether in a particular case the proceeding is an abuse of process will depend on all the circumstances of the case including the purpose of the applicant in seeking the order of the Court. (see Deangrove Pty Ltd (Receivers and Managers appointed) v Commonwealth Bank of Australia [2001] FCA 173.

16. The respondent submitted that the proceeding instituted in this Court for review of the decision of the Refugee Review Tribunal was an abuse of process for the same reasons as those given by Federal Magistrate Driver in SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207. (Also see SZAWW v MIMIA [2003] FMCA 479).  SZBAW also involved proceedings in the Federal Magistrates Court after earlier proceedings in the Federal Court had been discontinued by the applicant filing a notice of discontinuance shortly before the hearing date.  Federal Magistrate Driver stated (at [5]):

    An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant’s stay in Australia (NALE v Minister for Immigration [2003] FMCA 366 (22 August 2003) at [12]). However, 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 would bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326). The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner (Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34).

17. It was submitted that the only rational explanation for the applicant’s actions in discontinuing the Federal Court proceedings and commencing proceedings in this Court a year later (and after an unsuccessful attempt to have the Minister exercise his discretion under s.417 of the Act and the High Court proceedings) was that the applicant was motivated by a collateral purpose, namely the purpose of extending the period of the applicant’s stay in Australia (see Roser v Immigration Review Tribunal (1992) 28 ALD 182) . It was submitted that the applicant’s actions could not be explained away on the basis of legal advice or the absence of proper legal advice and that she plainly knew and had been previously advised that her application for review was hopeless. On this basis it was said that her action in discontinuing the earlier Federal Court proceedings (which included relevantly identical grounds of review to the application filed in these proceedings), and in making the s.417 application was “only explicable on the basis that the applicant was not challenging the finality of the RRT decision” (M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146 at [22]. Reliance was placed on the applicant’s concession in oral evidence that she had been advised by a barrister under the legal advice scheme that her earlier proceedings were hopeless and doomed to fail. It was also submitted that the discontinuance of the Federal Court proceedings followed by the submission to the respondent that he exercise his discretion under s.417 of the Act was the sort of tactical decision referred to by the Full Court of the Federal in Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126 at [19]. In such circumstances it was submitted that the present application for judicial review was filed for a collateral purpose of extending the period of the applicant’s stay in Australia while on a bridging visa

1. Bizuneh’s case involved an application to the Full Court of the Federal Court to set aside consent orders dismissing proceedings in the Federal Court. The application was brought on the basis that the applicant had been unable to obtain legal aid and thus was not fully advised and because he ought in justice to have the opportunity of a further hearing. However the Full Court characterised this claimed “mistake” as really no more than a tactical decision which failed to yield the desired result. The applicant hoped that the Minister would exercise his power under s.417. The Court found that there was no mistake and that the applicant knew ‘perfectly well’ what the effect of the consent order would be and that in particular, it would terminate his application to the Court (at [19]). Similarly in this case the applicant knew what the effect of filing the notice of discontinuance by consent would be in relation to the Federal Court proceedings. She had received legal advice in relation to the proceedings and her prospects of success. In the circumstances of this case I am satisfied that the discontinuance and subsequent s.417 request to the respondent was a tactical decision of the sort referred to in Bizuneh.  Moreover, in Daniel v MIMIA [2004] FCA 21 Goldberg J suggested at [14] that in circumstances where there was a consent dismissal of proceedings in the Federal Court (which the applicant claimed was due to unparticularised financial constraints) followed by a s.417 application, the taking of such course of action was “indicative of a decision by (the applicant) to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law”. I am satisfied on all the evidence before me that, as in Daniel, the applicant’s course of conduct in this instance in abandoning the Federal Court proceedings and making the s.417 request was an indication by her that she was prepared to accept that the Tribunal’s decision was correct and that she did not intend to challenge that decision further in the Court (Daniel at [14], also see Applicant A2 of 2002 v MIMIA [2003] FCA 576). It is necessary to determine whether in such circumstances the proceedings in this Court constitute an abuse of the process of the Court warranting summary dismissal.

2. Counsel for the applicant conceded that filing an application for a collateral purpose may constitute an abuse of process, but contended that this would not be so if an applicant commenced proceedings with a dual purpose.  It was said that in this case the applicant gave evidence that she had two purposes: one of which was the hope that the Court would find an error in the Tribunal’s decision and the other the purpose of staying in Australia. 

3. There are a number of points to make in relation to this submission. First I am not satisfied from the applicant’s evidence and her past course of conduct, that the statement that she had applied to the Court in the hope that ‘something may happen’ in fact indicated a purpose of seeking that the Court find an ‘error’ in the Tribunal decision. She stated that she ‘had to think of something’ because she could not go back to her country. However her expression of hope should be considered in the context of the applicant having commenced the Federal Court proceedings, been advised that they were foredoomed to fail, discontinued on the eve of the hearing, and thereafter having made an application to the Minister under s.417 of the Act thus indicating an intention not to challenge the decision further in Court proceedings.

4. Moreover the suggestion that a collateral purpose is not established unless it is the only purpose for the filing of an application is contrary both to prior authority and to commonsense.  In Les Roser v Immigration Review Tribunal (1992) 28 ALD 182 O’Loughlin J considered an application for summary dismissal of proceedings on the basis that they constituted an abuse of process as amounting to an attempt to relitigate matters that had been decided adversely in prior proceedings. At [14] His Honour referred to the decision of the High Court in Williams v Spautz [1992] 107 ALR 635 which made it clear that the criterion for abuse of process was whether an improper purpose was the “predominant purpose”. The High Court had adopted the following passage from the Court of Appeal decision in Metall und Rohstoff v Donaldson Lufkin and Jenrette Inc (1990) 1 QB 391 at 469:

   A person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed.

5. Furthermore, if the applicant’s argument in this respect were to be accepted, it would mean that wherever an applicant had even a small hope that the Court would find an error in the Tribunal decision that would be sufficient to avoid a finding of collateral purpose. Even if the applicant did in fact have the hope that the Court would find an error in the Tribunal decision, that that would not prevent her predominant purpose from being to extend the period of her stay in Australia. The concern of Counsel for the applicant that the respondent could make summary dismissal applications against ‘hundreds’ of applicants (as having a purpose of remaining in Australia) is not warranted. In this instance the present proceedings are substantially a repetition of proceedings that were discontinued by the applicant who then made a s.417 application.

6. On the evidence before me, particularly the oral evidence of the applicant and the history of her prior proceedings and actions, I am satisfied that her predominant purpose in commencing these proceedings was to extend the period of her stay in Australia.  I have considered the underlying public interest in finality of litigation and also the seriousness of the consequences for the applicant if the proceedings are dismissed.  In the particular circumstances of this case it has been established that the application was filed for a collateral purpose of extending the applicant’s stay in Australia and the proceedings is an abuse of the legal process of the Court for judicial review of Tribunal decisions.  I am satisfied that the proceedings were brought as a means of obtaining an advantage for which the proceedings were not designed and were instituted for some collateral advantage beyond what the law offers (cf Second Life Décor Pty Limited v Controller General of Customs (1994) 53 FCR 78).

7. I have borne in mind that proceedings should not be dismissed summarily as an abuse of process merely on the ground that they appear to advance a highly implausible claim which will very probably fail (Australian Building Industries Pty Limited v Stramet Corp Limited FCAFC QG 122/97, 1 December 1997 unreported).  That is not the basis for dismissal in this instance.  The applicant seeks to litigate issues which were resolved by the consent discontinuance in the earlier proceedings for the predominant purpose of extending the period of her stay in Australia.  (See Chu v MIEA (1997) 47 ALD 538).

8. I have had regard to the fact that the mere institution of subsequent proceedings in this Court to review the same Tribunal decision that was the subject of earlier proceedings does not necessarily lead to a conclusion that the second proceedings are an abuse of process.  In SZBIC v MIMIA [2004] FCA 255 Moore J at [20] suggested that if an application suffered from ‘the same vice’ as the application dismissed in the Federal Court in that it was devoid of particulars disclosing any substantial basis for the prosecution of the application it was open to the Court to find an abuse of process (SZBIC at [21]). The application filed by the applicant in the Federal Court on 8 April 2002 listed five unparticularised grounds. The application filed in this Court on

   
   

   1 October 2003 repeated those grounds and added an unparticularised claim that a jurisdictional error occurred.  It suffered from the ‘same vice’ as it disclosed no substantial basis for prosecution of the application.  Moreover the application was filed for a collateral purpose.

9. However counsel for the applicant tendered an amended application which raises three particularised grounds.  He argued that the Court should exercise its discretion not to dismiss the proceedings, even if the applicant had commenced proceedings for a collateral purpose and knew at that time that the application was doomed to fail but sought to stay in Australia, provided that at a later time an argument was identified.  It was not suggested that the unparticularised and very general grounds contained in the application of 1 October 2003 established any basis for review of the Tribunal decision, but it was contended that the grounds for review canvassed in the applicant’s written submissions and contained in the foreshadowed amended application tendered in Court were arguable and hence that the Court should exercise its discretion not to dismiss the proceedings on the ground of abuse of process.  It was submitted that these proceedings were not foredoomed to fail and that there was a real question to be determined, that the rights of the applicant depended upon it and that it was not competent for the Court to dismiss the action as an abuse of process (Dey v Victorian Railways Commissioner (1949) 78 CLR 62).

10. The respondent contended on the basis of arguments advanced in written submissions that the application should be dismissed as an abuse of process and that an application on the basis of the foreshadowed amended application was, in any event, foredoomed to fail.  Counsel for the applicant was given the opportunity to address such submissions.  I have considered these contentions bearing in mind that the onus is on the respondent to establish the basis for a summary dismissal.  While the power to summarily dismiss an application as an abuse of process should be exercised sparingly I am not satisfied that the mere fact that the applicant proposes to file an amended application in proper form, raising particularised grounds which, if established, would provide a basis for relief is of itself a reason to exercise my discretion not to dismiss the proceedings as an abuse of process.  Were it otherwise any application for summary dismissal on the ground of abuse of process could be “defeated” by of an application in proper form, however unmeritorious or whatever the circumstances constituting the abuse of process.  The applicant does not go so far as to suggest that this is so but claims that the proposed reliance on grounds which, it is contended, disclose an arguable case, warrants the exercise of the discretion even if the proceeding is an abuse of the process of the Court.

11. The first proposed ground is that “the applicant claimed that she managed to bypass airport security in leaving India by bribing “a high ranking official at the airport” and the Tribunal ignored this evidence in the course of finding that “the applicant was able to freely leave the country on two separate occasions” and on this basis did not have “any sort of political profile to be of interest to anyone”.  Such ignoring of relevant evidence was said to constitute jurisdictional error. 

12. The Tribunal referred to the applicant leaving the country freely in the context of considering her claim that three political parties had initiated a false prosecution against her, that she was forced to leave the country and now could not return because she feared persecution on her return.  The applicant did not take up the opportunity to attend a Tribunal hearing to elaborate on her claims.  The Tribunal described the absence of detail as to the alleged prosecution (either its nature, particulars or cause of action) and stated that it noticed from the Department file that it appeared that the applicant had no difficulty in getting an Australian visa in New Delhi and was able to freely leave India on two separate occasions ‘despite the fact that 3 political parties (one of which was an incumbent government) had allegedly initiated a prosecution against her’.  The Tribunal concluded that it was not convinced, on the evidence before it, that the applicant had any sort of political profile to be of interest to anyone including either the authorities or political parties.  Nor was it convinced ‘on the evidence before it’ that the applicant’s claims were genuine.  It is contended in the foreshadowed application that the Tribunal ignored the evidence that she had managed to ‘bypass airport security’ on her final departure from India ‘by bribing a high ranking official at the airport’.  In fact the statement attached to her visa application in which she made her claims does not refer to ‘bypassing airport security’ as such.  It states that she ‘managed a high-ranking officer at the airport by bribe to lead me out of the country.’  However reading the Tribunal reasons fairly and as a whole no arguable case is raised by this ground such as to warrant refusing the application for summary dismissal.  The Tribunal simply did not accept, on the basis of the sparse material that the applicant had placed before it, that the applicant’s claims were genuine or that her fears were well-founded.  The Tribunal’s lack of satisfaction was based on factual findings that were open to it on the material before it (including the claim of bribing an official).  In the absence of further details and elaboration of her claims it was not convinced that the applicant had any sort of political profile to be of interest to anyone including either the authorities or political parties or that her claims were genuine.  The applicant’s limited evidence did not fully explain the fact, that as pointed out by the Tribunal, the Departmental file recorded that she had left India twice (in March 2000 and again in April 2000) and was able to obtain an Australian visa.  Moreover, a failure to address every item of evidence is not a jurisdictional error.  It cannot be said that the Tribunal failed to consider an integer of the applicant’s claim to have a well-founded fear (cf Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244). At its highest the applicant’s argument is that the Tribunal made an error of fact (if one takes the view that the reference to ‘freely’ leaving the country is incorrect). However such finding of fact was in no sense critical to the Tribunal’s decision and such an error would not constitute a jurisdictional error (cf Applicant VEAJ of 2002 v MIMIA [2003] FCA 678; Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [59] - [65] [73]-[74]).

13. The second ground raised on behalf of the applicant is “The applicant claimed that the CPI-M activists targeted her as a result of her work as Women Affairs secretary at Basarat Committee of the National Congress.  It is submitted that on the basis of the applicant’s claim, the persecution would be for reason of political opinion, being the applicant’s support of the women’s movement.  However, the Tribunal characterised the claimed persecution as ‘religious persecution’. To this extent it is said that the Tribunal misunderstood the applicant’s claims and that a misunderstanding of the applicant’s claims could give rise to jurisdictional error.  However the Tribunal properly recognised that the applicant made claims based on her atheism and her political activism.  The Tribunal did not characterise her claim as religious persecution and ignore her claim of fear of persecution on political grounds as claimed.  It correctly summarised her claims and addressed all of them, including not only those based on atheism but also the various aspects based on political activism.  The Tribunal simply was not convinced that her claims, including her claims based on her supposed ‘political activism’, were genuine and did not accept that there was any basis for her claimed fears.  It rejected the claim that anything had happened to her as a result of her claimed political activism.  I am not satisfied that there is an arguable case that the Tribunal misunderstood the applicant’s claims in the manner contended such as to warrant exercising a discretion to refuse the application for summary dismissal. 

14. The last ground in the proposed amended application is that:  “The Tribunal found that there was ‘no evidence’ to support some of the applicant’s claims…The applicant’s claims constitute evidence.  In stating that there was ‘no evidence’, the Tribunal appears to have either misunderstood this point, or decided that the applicant’s claims were not evidence because she did not attend the hearing before the Tribunal.  In either case, the Tribunal’s approach may constitute jurisdictional error.”  However, it is apparent that when the Tribunal referred to the lack of ‘evidence’ what it was referring to was the lack of detail and the lack of supporting or corroborating evidence over and above the bare assertions contained in the sparse and general 1½ page statement relied on by the applicant.  This is clear from reading the Tribunal decision fairly and as a whole (see Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 185 CLR 259). It is specifically stated by the Tribunal in its conclusion that there “is no evidence in the application, other than the allegations themselves, to indicate that anything has happened to the applicant either because of her alleged atheism or political activism” (emphasis added).  The Tribunal understood that the applicant had made claims which constituted evidence. 

15. Having considered the grounds on which the applicant would seek to rely if an amended application were to be filed, as well as the grounds in the existing application, I am satisfied that it would be futile to allow the matter to proceed to a hearing.  The proceeding should be dismissed as an abuse of process.  The three fresh grounds the applicant now seeks to raise do not give rise to an arguable case such as to warrant the Court exercising its discretion not to dismiss the proceedings as contended by the applicant. 

16. Counsel for the applicant also took issue with the suggestion of Federal Magistrate Driver in SZBQW at [5] that even if no ulterior motive is found to exist the repeated bringing of similar applications can still be an abuse of process. In light of my findings in this case it is not necessary to further determine this issue. Nor is it necessary to determine whether the proceedings should be stayed pursuant to Rule 13.02(3). I am satisfied in this particular case that these proceedings should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules as an abuse of the process of the Court.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 August 2004