SZBQV v Minister for Immigration

[2006] FMCA 157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQV & ORS v MINISTER FOR IMMIGRATION [2006] FMCA 157

MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – abuse of process. 

Migration Act 1958, ss.424A, 424A(3), 425, 476
Commonwealth of Australia Constitution Act 1901, s.61
Federal Magistrates Court Rules 2001, rr.13.10(c) & 13.11

SZPQV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 366
Appellant S395 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 203 ALR 112
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Walton v Gardiner (1983) 177 CLR 378
SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650

Applicant: SZBQV & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2245 of 2005

Judgment of: Barnes FM

Hearing date: 17 January 2006

Delivered at: Sydney

Delivered on: 17 January 2006

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 18 August 2005 is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process. 

2. The applicant pay the first respondent's costs fixed in the sum of $3,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2245 of 2005

SZBQV & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter becomes before the Court by way of a notice of motion filed by the respondent on 9 September 2005 seeking that an application for a review of a decision of the Refugee Review Tribunal filed by the applicants in this Court on 18 August 2005 be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process.  The respondent also relies on a notice of objection to competency filed on 26 August 2005. 

2. The applicants, who are from Bangladesh, arrived in Australia in August 2002 and applied for protection visas.  The application was refused and the applicants sought review by the Tribunal.  The Tribunal held a hearing on 24 July 2003.  It handed down a decision on

   
   

   8 October 2003 affirming the decision of the delegate of the respondent not to grant the applicants protection visas. 

3. The applicants, who were legally represented, sought review of that decision by application for judicial review lodged on 16 October 2003 in this Court. For convenience the first applicant is referred to as the applicant. In the application it was asserted generally that the Tribunal made a jurisdictional error when it did not consider the correct question, that the decision involved an error of law (being an incorrect application of law to the facts) and that the Tribunal made the decision based on the existence of a particular fact that did not exist. Reliance was also placed on former s.476 of the Migration Act 1958 and it was contended that the Tribunal failed to take into account relevant consideration.  In an affidavit sworn on 16 October 2003 the applicant also claimed that he had been denied procedural fairness because he was not informed of the type of questions to be raised at the hearing.  He took issue with the Tribunal rejection of his claims. 

4. At a directions hearing held on 19 February 2004 orders were made by consent including an order that the applicants file and serve an amended and fully particularised application on or before 4 March 2004. It was noted in those orders that in default the respondent's solicitors may seek summary dismissal. An amended application was filed on 4 March 2004 which purported to rely on s.476 of the Migration Act 1958.  On 18 March 2004 orders were made by a Registrar of this Court that the applicant file and serve a further amended application for judicial review clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of evidence of every ground of review relied upon on or before 8 April 2004.  It was also ordered that if the applicants failed to comply with that order by 8 April 2004 the application would be dismissed by force of the order.  Provision was made for the fixing of costs. 

5. On 16 April 2004 the applicant presented a second amended application.  It contended generally that the Tribunal had failed to disclose the particular construction it gave to information from different sources and that such failure amounted to denial of procedural fairness and that specific country information to be used against the applicant should have been put to the applicant.  It was claimed that the Tribunal made a jurisdictional error when the applicant was not informed about the important section of particular country information on which the decision was made. 

6. It was also claimed that the applicant was denied procedural fairness when the Tribunal member formed an adverse view about him based on a letter which had been provided to the Tribunal and claimed that the Tribunal was influenced by bias and wrong information about the applicant's past political profile. 

7. On 27 May 2004 the applicant presented a further amended application claiming that issues were raised under s.61 of the Commonwealth of Australia Constitution Act 1901 and that in the alternative there was jurisdictional error in that the Tribunal, having regard to certain evidence before it, erred in holding that there was adequate state protection available to the applicant and that it erred in making a number of other specified findings.  It was also claimed that the Tribunal erred in seeking unlawfully to impose a prudence or discretion requirement on the applicant's future political activities should he return to Bangladesh, erred in holding that the applicant could engage in political activity without putting himself into situations where he would risk being involved in violence, that the decision of the Tribunal was unreasonable and against the weight of evidence and that the use made by the Tribunal of “so-called independent country information” was procedurally unfair. 

8. The matter came before Federal Magistrate Raphael on 7 June 2004 (see SZPQV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 366). The applicants sought to file and rely on the application presented on 27 May 2004. His Honour considered whether the consent orders made by the Registrar on 18 March 2004 should be set aside. He dismissed the application. It is relevant in these proceedings to have regard to what Federal Magistrate Raphael said in relation to the various applications because, while the effect of his decision was that the orders of the Registrar dismissing the application for review for the applicant’s failure to file and serve a further amended application as ordered would stand (so that the application remained dismissed), his Honour also addressed the substance of the applicant's claims in the proposed further amended application of 27 May 2004.

9. Federal Magistrate Raphael stated that it seemed that the applicant sought not a review but a re-hearing insofar as it was contended that the Tribunal came to a wrong conclusion on the facts.  His Honour pointed out that that re-finding of facts was not a matter for the Court. 

10. His Honour expressed the view that the interests of justice required an applicant to abide by orders of the Court and that it was only in exceptional cases that a failure to abide by orders to which the applicant had consented should be excused. He was prepared to accept that such circumstances could include a re-casting of the case in a compelling form. However, importantly, for present proceedings his Honour was not satisfied that this was what the further further amended application did. He noted that it appeared from a reading of the decision of the Tribunal that most of the independent country information on which it relied was put to the applicant for comment and, critically, expressed the view that the only seriously arguable matters were those raised relating to the alleged unlawful imposition of a prudence or discretion requirement. In that respect his Honour found at [9] based on “a close reading of the relevant paragraph of the Tribunal's decision”, that the Tribunal had made a finding of fact that the activity likely to be engaged in by the applicant would not involve him in a real chance of experiencing violence at the levels described in s.91R of the Migration Act 1958 (C’th).  

11. In particular Federal Magistrate Raphael considered the grounds that appeared to raise points based on Appellant S395 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 203 ALR 112 observing that the Tribunal would not be in error merely because it concluded that an applicant would act in a low key or discrete manner and that it had found not that the applicant ‘could’ but that he ‘would’ engage in political activity without putting himself into situations where he would be at risk of being involved in violence. Such a finding was said to be a finding of fact not the imposition of a condition. Thus His Honour addressed the substantive issue raised in the amended application, but found that the Tribunal had not imposed a condition.

12. The applicant filed a notice of appeal to the Federal Court. It was ordered that the notice of appeal be treated as an application for leave to appeal. On 22 September 2004 Jacobson J ordered that leave to appeal be refused with costs. Again, it is relevant to have regard to the judgment of Jacobson J reported at [2004] FCA 1242. His Honour recounted the history of the matter and summarised the approach of Federal Magistrate Raphael, noting not only that his Honour had found that the relevant order had not been complied with but also that he had considered whether he ought to exercise his discretion to set aside the orders by reason of the filing of the second further amended application, but had found that there was no compelling reason to do so.

13. Jacobson J then outlined the applicant's claims and the findings of the Tribunal, in particular that the Tribunal accepted that the applicant had been arrested and interrogated in 1996 as claimed but did not consider that this constituted persecution pursuant to s.91R of the Migration Act 1958 (C’th).  It had also accepted his claims about violence in Bangladesh surrounding the 2001 election but on the basis of country information to the effect that violence had subsided after 2002, considered the applicant's fears of politically motivated violence of the kind that occurred around the election period were not well-founded.

    
    

    It did not accept that the applicant had experienced harm as a result of his political beliefs for a Convention reason and found that adequate state protection was available and that the applicant's profile as a political activist was not prominent. 

14. Jacobson J considered whether there was an arguable ground of jurisdictional error in any of the grounds the applicant raised in relation to the Tribunal decision.  In relation to the argument that the Tribunal had imposed a requirement that the applicant’s political activity be “prudent” or “discreet” (see Appellant S395) Jacobson J found that the Tribunal imposed no requirement that the applicant could engage in political activity without putting himself at risk of violence.  Rather the Tribunal made a finding of fact, based on the applicant’s past experiences, that he would no suffer serious harm amounting to persecution.  This was a question of fact for the Tribunal and no arguable jurisdictional error was disclosed in this respect.  His Honour considered the applicant’s contentions but found nothing in the Tribunal’s reasons which indicated that it fell into the error identified in s.395. 

15. His Honour also considered the applicant’s contention that Federal Magistrate Raphael was in error in failing to find that there had been an arguable case of denial of procedural fairness or a breach of s.424A because “most” but not all of the country information was put to him.  Jacobsen J rejected that argument, stating that it must fail because the country information would fall within the exception contained in s.424A(3) of the Act.  The applicant had also failed to identify any item of information not put to him for comment.  His Honour rejected the applicant’s submissions that he should have been provided with a transcript of the Tribunal hearing.  The applicant also took issue with some of the country information relied upon.  Jacobson J found that neither of these propositions disclosed an arguable case of error.  His Honour found that the question of whether the Tribunal should have accepted the country information about which the applicant complained was a question of fact for the Tribunal. 

16. His Honour also considered the contention that there was an arguable ground of jurisdictional error in that the Tribunal failed to apply the tests for persecution stated by the High Court.  This argument also failed.  Finally Jacobson J found that all the other points raised by the applicant were an attempt to re-canvass factual findings and that there was no error in the Federal Magistrate's view that the thrust of the second further amended application was to seek a review of such factual findings. 

17. In conclusion his Honour found no error in the conclusion that the second further amended application did not raise any arguable jurisdictional error of the Tribunal.  Hence, there was no error in the Federal Magistrate's refusal to set aside the self-executing orders.  His decision was not attended by sufficient doubt.  Relevantly Jacobson J found that there was no substantial injustice because the applicant has “failed to demonstrate any arguable case of jurisdictional error” (at [35]).

18. In the course of oral submissions the applicant provided the Court with a copy of an order made by the High Court of Australia on 4 August 2005 in which Gleeson CJ and Gummow J dismissed an application for special leave to appeal from the decision of Jacobson J.  The legal representative for the respondent withdrew submissions that had been made about unexplained delay in instituting these proceedings after the decision of the Federal Court. 

19. The applicant had another opportunity before the High Court to demonstrate, were he able to do so, that either he had complied with the order or, more particularly, that he had an arguable case and hence a substantial injustice would have been caused to him had the orders dismissing his application not been set aside.  However, the application for special leave was dismissed. 

20. The application filed on 18 August 2005 contains general and unparticularised grounds.  It is claimed that the Tribunal asked itself the wrong question, did not take into account the applicant’s oral evidence, denied natural justice, that there was actual apprehended bias, that the Tribunal failed to investigate a genuine claim, did not check the authenticity of the applicant’s oral evidence, denied procedural fairness by ruling out the claim as fabricated without proper investigation, did not use the country information as specific , was preoccupied and did not have a fresh look.  The applicant repeated his claims to be a refugee and referred to the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

21. In a written submission the applicant further reiterated his claim to be a refugee and referred to information on the situation in Bangladesh.  He contended that the Tribunal had failed to consider this information, that it denied him procedural fairness in the hearing, breached s.424A and did not consider the evidence he had provided about the situation in Bangladesh.  He also took issue with the factual findings of the Tribunal.  Section 425 was relied on as well as the alleged denial of natural justice. 

22. I have spent some considerable time outlining the history of this matter because in this instance the prior proceedings did not include a final hearing in relation to the applicant's claim for review of the Tribunal decision. However, in the particular circumstances of this case I am nonetheless satisfied that, while bearing in mind that it is an exceptional case in which a matter should be dismissed summarily as an abuse of process, nonetheless, it has been established by the respondent that the present proceedings are an abuse of process and should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001. 

23. The applicant has previously sought judicial review of the same Tribunal decision that is the subject of these proceedings.  In the course of declining to set aside the orders made by the Registrar, Federal Magistrate Raphael considered the further amended application on which the applicant sought to rely and whether it raised an arguable (despite his failure to comply with orders and the consequential dismissal of his application for judicial review).  He found no such arguable case. 

24. Jacobson J went through the same process in determining whether or not to grant leave to appeal.  His Honour reviewed the applicant's claims in some detail, the Tribunal's findings and the judgment of the Federal Magistrate.  His Honour held that there was no substantial injustice in the Federal Magistrate's approach because the applicant had failed to demonstrate ‘any’ arguable case of jurisdictional error.  In refusing leave to appeal it is clear that Jacobson J was of the view that, taking into account the further amended application and the fresh matters which the applicant sought to raise before him, the application for judicial review of the Tribunal decision was nonetheless bound to fail.  The High Court refused the applicant's application for special leave to appeal from the decision of Jacobson J.  

25. In all the circumstances I am satisfied that in this case the circumstances come within the well-established principles considered by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1983) 177 CLR 378 at 393 where their Honours stated that a court has:

    “…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 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.”

26. The fact that the applicant did not have a final hearing on the merits of his prior application before the Federal Magistrates Court, the Federal Court and the High Court is not of itself a bar to a finding that the present proceedings in all the circumstances are an abuse of process.  As in this case, in SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650 an application was dismissed for failure to comply with orders. The applicant subsequently joined a class action. The matter was remitted as an individual matter to the Federal Court and a judge of the Federal Court heard and dismissed an application for an order nisi. Subsequently fresh proceedings were commenced and were found by Wilcox J to be an abuse of process. At [11] his Honour stated that it was clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action.

1. The prior proceedings in this instance were also dismissed for failure to comply with orders.  Nonetheless Jacobson J considered whether or not there was arguable case of jurisdictional error.  The applicant now relies on an application cast in somewhat different terms and has filed the document headed: applicant's submissions on appeal which raises other matters.  However the substance of the matters raised by him are matters that were canvassed sufficiently in the earlier decisions.  In particular, the grounds that seek merits review do not, as was recognised by both of the earlier judgments, provide a basis for an arguable ground of jurisdictional error.  The claim that there was a breach of s.424A or a lack of procedural fairness was considered but not found to be an arguable ground by Jacobson J.  The applicant also now seeks to raise s.425, but the claim does not go beyond that considered by Jacobson J.  Moreover, while the applicant takes issue with the Tribunal hearing, there is no transcript of the Tribunal hearing before the Court.  Nor was there before the earlier Courts.  There is nothing before the Court to support the claim of breach of s.425 or the claim of a lack of procedural fairness. 

2. The generally expressed claims raised by the applicant in the current application for review do not raise fresh matters such as to indicate that these proceedings are not clearly foredoomed to fail, based on the Tribunal decision and the matters dealt with in the prior proceedings. 

3. The applicant claims that he is unrepresented and has no legal adviser to assist him.  However he had the benefit of legal advice in his prior proceedings before the Federal Magistrates Court and in the Federal Court.  He had ample opportunity to bring forward any legitimate and bona fide claim and to inform the Court and the respondent of the nature and evidentiary basis for any such claim. 

4. The current application and affidavit raise issues which were in essence considered by Federal Magistrate Raphael and Jacobson J and found to reveal no arguable jurisdictional error.  Jacobson J found no arguable case of jurisdictional error.  In all of those circumstances I consider that the bringing of the current application can be considered unjustifiably vexatious amounting to an abuse of process, particularly having regard to the underlying public interest in the finality of litigation.  I am satisfied that the present proceedings are an abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court and that have raised no arguable case. 

5. Accordingly, I intend to dismiss the application pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.  That makes it unnecessary to determine the alternative argument based on the notice of objection to competency. 

6. The respondent also seeks orders that the applicant pay the first respondent's costs on an indemnity basis and that no further application to review the decision of the Tribunal be accepted for filing except with leave of the Court.  Neither of these matters have been addressed in submissions and I will hear submissions in relation to the orders that are sought.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay costs on an indemnity basis. However, in the particular circumstances of these proceedings I am not persuaded that this is an appropriate case for such an order and, rather, I consider that the adult applicants should pay costs fixed in the sum of $3,650. Nor am I persuaded, in the absence of it being established that the situation is one to which Rule 13.11 of the Federal Magistrates Court Rules 2001 applies, that I should make the order that no further application for review be accepted for filing except with the leave 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:  10 February 2006.