SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FMCA 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQW v MINISTER FOR IMMIGRATION [2004] FMCA 207

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and racial persecution in Bangladesh – motion for summary dismissal of the application as an abuse of process – prior proceedings in the Federal Court discontinued – failure to comply with court orders in both proceedings – lack of particularity in both proceedings – motion granted.

Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.477

Chu v Minister for Immigration (1997) 78 FCR 314
JV Gore Wood & Co [2002] 2 AC 1
Kopalapillai v Minister for Immigration (!998) 86 FCR 547
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NALE v Minister for Immigration [2003] FMCA 366
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Rogers v The Queen (1994) 181 CLR 251
SZAWW v Minister for Immigration [2003] FMCA 479
SZBIC v Minister for Immigration [2004] FCA 255
SZBJM v Minister for Immigration [2003] FMCA 599
W148/00A v Minister for Immigration (2001) 185 ALR 703
Walton v Gardiner (1993) 177 CLR 378

Applicant: SZBQW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2176 of 2003

Delivered on: 22 March 2004

Delivered at: Sydney

Hearing date: 22 March 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr R White
Sparke Helmore

ORDERS

1. The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, including the motion, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2176 of 2003

SZBQW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me a motion for the summary dismissal of an application for judicial review filed in this Court on 16 October 2003. The judicial review application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) challenges a decision of the Refugee Review Tribunal (“the RRT”) made on 9 August 2002 and handed down on 29 August 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The motion seeks the summary dismissal of the application pursuant to part 13, rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) as an abuse of process.

2. The Minister proceeds on the basis of the notice of motion filed on 19 February 2004, an affidavit of Katie Jane Bryant filed on the same day and an affidavit by Rebecca Kate Leahy filed on 19 March 2004. Mr White, for the Minister, also presented written submissions and a chronology, which were filed on 11 March 2004.

3. I note that on 19 February 2004 the applicant was ordered to file and serve written submissions on the motion within two working days of the hearing of the motion.  That order has not been complied with.  The applicant attended court this afternoon but was not able to advance any reasons why the motion should not be granted other than refer to the fact that he has not had the advantage of legal advice in relation to his present application in this Court.

4. The relevant background facts and circumstances are set out in the affidavits by Ms Leahy and Ms Bryant, and in paragraphs 1 through to 12 of Mr White's written submissions.  I adopt those paragraphs for the purposes of this judgment.  I also adopt the chronology annexed to those written submissions:

   By notice of motion filed on 19 February 2004, the respondent moves the Court for orders that these proceedings be summarily dismissed with costs.

   In support of the motion, the Respondent relies on the affidavit of Katie Jane Bryant sworn on 19 February 2004, the chronology filed with these submissions and the court book filed on 14 October 2002 in Federal Court of Australia proceedings number N971 of 2002. 

   These proceedings were commenced by an application under s.39B of the Judiciary Act filed in the Federal Magistrates Court of Australia on 16 October 2003.

   A notice of objection to competency under s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”) was filed by the respondent in the Federal Magistrates Court of Australia on 11 March 2004.

   Background

   The applicant arrived in Australia on 25 April 1998 (court book, page 8).  The applicant applied for a protection visa on 9 March 2000 (court book, pages 1-17).  The delegate’s decision refusing the visa was made on 17 March 2000 (court book, pages 18-25).  The applicant applied to the RRT for review on 7 April 2000 (court book, pages 26-29).  The RRT held a hearing on 8 August 2002 (court book, page 42).  On 9 August 2002, the RRT affirmed the delegate’s decision refusing the visa (court book, pages 46-61).

   On 18 September 2002, the applicant filed an application for judicial review of the RRT decision dated 9 August 2002 in the New South Wales district registry of the Federal Court of Australia.[1]  These proceedings were given the Federal Court reference N971 of 2002 and were subsequently listed for hearing before Her Honour Justice Branson on 17 December 2002.

   [1] Annexure “B”, Affidavit of Katie Jane Bryant sworn on 19 February 2004

   On 13 December 2002, the applicant filed a notice of discontinuance wholly discontinuing Federal Court proceedings N971 of 2002.[2] 

   [2] Annexure “C”, Affidavit of Katie Jane Bryant sworn on 19 February 2004

   Applicant’s claims

   The applicant claimed to fear persecution for reason of his race and political opinion in Bangladesh.  He claimed that he was a member of the Bihari minority, had been persecuted by Bangladesh nationals, and had false charges of murder laid against him following a demonstration on 15 January 1998 (court book, pages 14-17, 52-55).  Before the RRT he produced a number of documents to support his claims (court book, pages 51-52), including a purported “first information report” (FIR) for the false charges he claimed had been laid against him.

   RRT’s findings

   The RRT found that the applicant was an unsatisfactory witness who had fabricated his claim to be a Bihari to create a refugee profile (court book, page 59.2).  The RRT noted that the applicant had travelled on a Bangladeshi passport, and originally indicated Bangladeshi citizenship on his protection visa application (court book, page 58.4, referring to court book, page 8).  The applicant could not speak Urdu (court book, page 58.7, referring to court book, page 53.6), despite independent country information indicating this as the language spoken by most Biharis (court book, page 58.8).

   The documents that the applicant provided were inconsistent with his claims (court book, page 59.9-59.1), and there was independent evidence of widespread document fraud in Bangladesh (court book, page 57.2).  In particular, the FIR produced by the applicant (court book, pages 37-38) refers to an offence on a different date to that claimed by him (court book, page 59.5).  The RRT regarded the applicant’s claims to have been in hiding in Bangladesh to escape arrest before coming to Australia as confused and implausible (court book, page 59.6-60.1).

   Further, the RRT noted that the applicant returned to Bangladesh in 1999, and had not claimed a protection visa while in Australia before this time, strongly suggesting that he had no genuine fear of persecution in Bangladesh (court book, page 60.5).

   The RRT concluded that it did not believe any of the applicant’s claims, but that even if it accepted that he was a Bihari the RRT would not be satisfied that the applicant had a well founded fear of persecution, given independent country information that Biharis were not persecuted in Bangladesh (court book, page 60.9).  The RRT concluded that given these findings, it was not satisfied that there was a real chance of the applicant facing Convention-related persecution in Bangladesh (court book, page 60.9).

   Chronology

   Background

   Applicant born in Bangladesh  25 February 1977

   Applicants arrived in Australia   25 April 1998

   DIMIA

   Application for protection visa lodged  9 March 2000

   Delegate’s decision  17 March 2000

   RRT

   Application for review lodged  28 March 2000

   RRT hearing  8 August 2002

   RRT decision handed down  29 August 2002

   Federal Court N971 of 2002

   Application for review lodged  18 September 2002

   Notice of discontinuance filed  13 December 2002

   Federal Magistrates Court  SZ2176 of 2003

   Application for judicial review filed  18 October 2003

   Directions hearing  19 February 2004

   Respondent filed notice of motion and                    19 February 2004

   supporting affidavit 19 February 2004

5. In paragraphs 13 to 18 of his written submissions Mr White deals with the issue of abuse of process.  I agree generally with those submissions:

   Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process.

   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.[3]  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.[4]  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 matter.[5] 

   In SZAWW v Minister for Immigration [2003] FMCA 479, the Court applied the extended notion of abuse of process in Walton v Gardiner when holding that the applicant should not "be permitted to wait seven years to take advantage of a change in the law to reactivate proceedings that had earlier been abandoned". The Court further held that it would be unfair to the Minister to permit multiple applications for review.

   All the tests set out above are satisfied in the present case.  The attached Chronology details the circumstances of the applicant’s previous litigation which indicate an abuse of process.  In particular, the applicant discontinued his earlier proceedings two working days before the hearing and after the respondent’s submissions had been filed.   Furthermore, by filing repeated applications with respect to the same RRT decision, the proceedings are an abuse of process.[6]

   It should be noted that the second application is plainly hopeless in any event.  It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its strong finding that the applicant was an unreliable witness and his claims fabricated.  Such findings are matters of fact for the RRT.[7]  So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions.[8]  The RRT’s findings were, at least, open for the reasons it gives.

   These proceedings are a clear abuse of process and ought to be summarily dismissed to avoid  further public expense in defending proceedings that raise no arguable case, have no prospects of success and where the applicant has repeatedly failed to advance his case in any meaningful sense.

   [3]NALE v Minister for Immigration [2003] FMCA 366 (22 August 2003) at [12]

   [4] 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

   [5] J V Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34

   [6]SZBJM v Minister for Immigration [2003] FMCA 599 (15 December 2003) per Raphael FM at [4]

   [7]Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]

   [8] Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ

6. However, I note that in SZBIC v Minister for Immigration [2004] FCA 255, His Honour Moore J, on an appeal from me, held that the mere fact that proceedings are instituted in this Court to review the same RRT decision as was the subject of earlier proceedings in the Federal Court, does not necessarily lead to a conclusion that the second proceedings are an abuse of process.

7. Nevertheless, in paragraph 21 of his reasons, His Honour accepted that where the initial proceedings in the Federal Court had suffered from some vice, in that case a lack of particularity, and where, in the second proceedings, the application suffers from the same vice, it was open to this Court to find an abuse of process. 

8. It is clear that the applicant in 2002 commenced proceedings in the Federal Court to review the same RRT decision that is the subject of his present application in this Court.  The grounds of the first application in the Federal Court were set out in the application filed on 18 September 2002.  However, in an affidavit filed on the same day those grounds were augmented.  Importantly, paragraph 3 of the affidavit contains an allegation that the RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information.  The applicant was ordered to provide a particularised application but did not do so.  Instead his application in the Federal Court was discontinued.

9. The applicant’s application in this Court filed on 16 October 2003 seeks to take advantage of the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. Clearly, it was open to the applicant to take advantage of that decision in the Federal Court proceedings. The application contains a generalised allegation of error of law and refers to the High Court decision in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.

10. This application is narrower in its scope than the first application in the Federal Court.  However, it suffers from the same vice as the application in the Federal Court in that it has a lack of particularity.  The applicant has waited approximately 10 months after discontinuing his proceeding in the Federal Court before instituting his present application in this court.

11. The application for review is not a strong one.  The only aspect of the decision of the RRT which might give cause for some legal concern is the presiding member's reliance upon country information about document fraud in Bangladesh referred to on page 59 of the court book.  However, although the presiding member considered that the visa application lacked credibility she also considered the application as if it were credible.  She concluded that the applicant did not have a well founded fear of persecution.  In my view, it is most unlikely that the application in this Court would succeed.  The lack of particularity of this application, when considered in the light of the lack of particularity in the earlier application in the Federal Court, and the failure by the applicant to comply with procedural orders in either court, leads me to the view that the present application is vexatious and an abuse of process.

12. I will grant the motion and dismiss the application for judicial review pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.

13. On the question of costs, the application having been dismissed, Mr White seeks an order for costs and tells me that the Minister has incurred costs of around $2,600.  The applicant did not wish to make any submissions on costs.  On a party/party basis an award of costs would be appropriate.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, including the motion, which I fix in the sum of $2000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of  Driver FM

Associate: 

Date:  6 April 2004