SZBUD v Minister for Immigration
[2006] FMCA 186
•06 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 186 |
| MIGRATION – Refugee – need to provide particulars to substantiate allegations of jurisdictional error – mere assertions – Tribunal did not exceed its jurisdiction – Tribunal considered all of applicants’ claims and oral evidence – no denial of natural justice, bias or apprehension of bias – no failure to investigate claims – no denial of procedural fairness – no reasonable cause of action disclosed – applicant republished claims to Tribunal – abuse of process – application dismissed – indemnity costs. |
| Migration Act 1958, ss.36(2), 65, 424, 424A, 424A(1), 424A(2), 424A(3)(b), Federal Magistrates Court Rules 2001, rr.1.05, 13.10 |
| General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959 Webster v Lampard (1993) 177 CLR 598 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Miller v Wertheim and Anor [2001] FCA 103 Xie v The Immigration Department [1999] FCA 365 Chung v University of Sydney [2001] FMCA 94 Yo Han Chung v University of Sydney [2002] FCA 186 Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal Ex parte H [2001] HCA 28 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 78 ALJR 992 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 Walton v Gardiner (1993) 177 CLR 378 SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 Applicant A321of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 SZBJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404 Re WILCOX; Ex parte VENTURE INDUSTRIES PTY LTD and Others (No. 2) (1996) 72 FCR 151 NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 |
| Applicant: | SZBUD & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2595 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 06 February 2006 |
| Date of Last Submission: | 14 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 06 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. P. Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, upholding the first respondent’s interlocutory application.
Neither applicant file any further applications without leave of the Court in respect of the Tribunal decision handed down on 22 October 2003, concerning the applicants, or the decision of the delegate dated 18 February 2003, or the notification of either of those two decisions to the applicants.
The first applicant pay the first respondent’s costs on an indemnity basis, fixed at $4,600.00.
Leave be granted to the first respondent to file any application relating to costs she may wish to make within 14 days from receipt of the written reasons for Judgment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2595 of 2005
| SZBUD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
I have before me an interlocutory application by the respondent Minister for summary dismissal of a judicial review application filed in this Court on 15 September 2005. That application seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 September 2003 and handed down on
22 October 2003.The first respondent Minister seeks orders:
1)That the application is incompetent.
2)Further or in the alternative that the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”).
3)An order that the applicants not file any further application or commence any proceedings relating to the Tribunal decision without leave of the Court.
4)Fixed costs assessed on an indemnity basis.
The interlocutory application is supported by the affidavit, with annexures, of Patrick David Reynolds, a solicitor in the employ of the respondent’s solicitors, sworn on 12 October 2005 and filed on
14 October 2005. I also have before me the respondent’s outline of submissions filed on 14 November 2005. Nothing further has been put before the Court by the applicants beyond the originating application.The applicants are husband and wife and are citizens of India. They arrived in Australia on 13 September 2002 and applied for protection visas on 30 September 2002. Their claims to protection are set out in their application for a protection visa reproduced at Court Book (“CB”) 1 to CB 46, and particularly in a statement at CB 1 to CB 2, drafted with the assistance of their then migration agent, and in their application for review to the Tribunal reproduced at CB 63 to CB 65. In that application the applicants stated:
“Please refer to above departmental file…” (The file of the first respondent's Department). A detailed submission will be late after receiving all the relevant information and documents in the support of their refugee claim.”
It does not appear that anything further was submitted to the Tribunal.
By letter dated 11 August 2003 (CB 69 to CB 70) the Tribunal advised the applicants that it had considered the material before it in relation to the application, but was unable to make a decision in their favour on this information alone and invited the applicants to come to a hearing of the Tribunal to give oral evidence and present arguments in support of their claims. The hearing was scheduled for 11 September 2003. The applicants, who appeared to still retain the services of a migration adviser (CB 64 to CB 71.3), responded that they did not want to come to a hearing, and thereby consented to the Tribunal proceeding to make a decision on the review without taking any further action to enable them to appear before it (CB 71). The Tribunal then proceeded to a decision on what was before it.
Only the applicant husband made specific claims under the Refugees Convention. He claimed persecution on the basis of political opinion and religion. He claimed that he was a Hindu from the state of Gujarat and that he was a strong supporter of the Congress-I political party. He claimed that after Muslims set fire to a train in Gujarat on 28 February 2002, he protested strongly about this “heinous act” and became the target of extremists from the Muslim League. He further claimed that in March 2002 he was beaten up by people from this group and that threats were made that he would be killed if he continued his protest. He claimed that no action was taken by police after he complained to them. He also claimed that because of his membership of the Congress-I party, that the extremist Muslim League party, “the BJP and RSS became his enemy”. He further claimed that in May 2002 while driving his scooter he was hit by a Muslim extremist in a car, and was threatened that he would be killed if he lodged a complaint. The applicant stated that he and his family were “scared” by this situation and tried to relocate, but it was “not easy and moreover nothing is beyond the reach of the extremists”.
The Tribunal's “Findings and Reasons” in its decision record are reproduced at CB 81.5 to CB 82.8. The Tribunal:
1)Accepted that the applicants were citizens of India and that their claims should be assessed against that country (CB 81.5).
2)Noted that the applicant husband is a Hindu, the majority religion in Gujarat, and that there was independent country information about the particular incident involving the train mentioned by the applicant (CB 81.9).
3)Accepted that it was possible that in relation to the above incident and the widespread civil disturbance that followed, that the applicant received some injuries (CB 82.1). However, it found that attributing a motor vehicle accident to a deliberate attempt to kill him seemed “far-fetched” (CB 82.2).
4)Rejected the claim that the applicant husband was not afforded state protection on the basis that there was clear evidence that the protection of Gujarati citizens was partisan, but that the forces of the State were ranged against the Muslims, and that as a Hindu the applicant would have enjoyed the full protection of the State. Although, it also noted, that this would not preclude his being injured in a random or opportunistic incident (CB 82.3).
5)Noted that although the applicant husband had said that he had to relocate this was inconsistent with the applicant’s written response in the protection visa application which indicated that he had remained at one address from 1986 to his departure and that he had remained in the same place of employment in that period (CB 82.4).
6)Found that in the period since the applicant left India there had been a State election in Gujarat which returned the government which was in power at the time of the train incident and the Tribunal noted that the Chief Minister had been criticised for his emphasis on Hindu nationalism, and that Hindu interests would continue to be protected (CB 82.6).
7)Found on this basis that it could not be satisfied that the applicant husband was a person to whom Australia owed protection obligations and as such did not satisfy the relevant criterion set out in s.36(2) of the Migration Act 1958 (“the Act”) for a protection visa. As no specific claims were made by the applicant wife, the fate of her application depended on that of the applicant husband.
The applicants before me now have already been before this Court, the Federal Court and the High Court in relation to the same Tribunal decision about which they now still complain:
1)On 31 October 2003 the applicants filed an earlier application for judicial review of the Tribunal decision in this Court (see pages 11-13 of Exhibit PDR1 of the affidavit of Patrick David Reynolds).
2)On 23 November 2003 the respondent Minister filed an interlocutory application (see pages 14-16 of Exhibit PDR1) seeking dismissal of that application pursuant to Rule 13.10 of the Rules.
3)On 17 January 2005 Driver FM upheld the respondent’s application. At pages 23-33 of Exhibit PDR1 is a copy of the reasons of his Honour’s Judgement dated 17 January 2005 and a sealed copy of orders made by Driver FM on 17 January 2005 are at page 34 of Exhibit PDR1.
4)On 4 February 2005 the applicants filed an application for leave to appeal from the Judgement of Driver FM. At page 35 of Exhibit PDR1 is a copy of the application filed by applicants at the Federal Court of Australia.
5)On 19 April 2005 the Federal Court dismissed this application. At pages 36-43 of Exhibit PDR1 is a copy of the reasons of the Judgement of Hill J. dated 19 April 2005 and at page 44 is a sealed copy of His Honour’s orders made on 19 April 2005.
6)On 13 May 2005 the applicants filed an application for special leave to appeal in the High Court. At pages 45-47 of Exhibit PDR1 is a copy of the application for special leave filed on 13 May 2005.
7)On 30 August 2005 the High Court of Australia dismissed the application for special leave to appeal. At pages 48-50 of Exhibit PDR1 is a copy of the Transcript of the proceedings and appearing at page 51 of Exhibit PDR1 is a sealed copy of the orders made by the High Court.
Having been unsuccessful before this Court, the Federal Court and the High Court, the applicants have now sought to recommence the process. The application before me now makes general assertions, but without any real particularity to support the claims. The grounds (using as far as possible the words contained in the application) are:
1.The Tribunal exceeded its jurisdictional or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution.
2.Did not take into considering of the oral evidence regarding my persecution.
3.The Tribunal denied the natural justice in determine my review application.
4.The Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.
5.The Tribunal exceeded its jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
6.The tribunal has denied the procedural fairness by ruling out my claims as fabricated without proper investigation. If the reliance was going to be placed to this I was not given opportunity to contest at any time prior to the RRT decision.
7.The Tribunal did not use the country information as specified however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The Tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal was preoccupied and did not have a fresh look. The tribunal also fail to consider the Amnesty International country information.
I agree with and adopt paragraphs 17 to 24 of the respondent’s submissions:
“17.Rule 13.10 of the FMC Rules provides:
“The Court order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
[I note the current form of Rule 13.10 is:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
- the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
- the proceeding or claim for relief is frivolous or vexatious; or
- the proceeding or claim for relief is an abuse of the process of the Court.
[Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.]”
18. Rule 1.05 of the FMC Rules provides:
“(1)It is intended that the practice and procedure of Federal Magistrates Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984, in whole or in part and modified or dispensed with, as necessary.”
19. Order 20 Rule 2 of the Federal Court Rules (“FC Rules”) provides:
“(1) Where in any proceeding it appears to the Court that in relation to proceeding generally or in relation to any claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the preceding.
(2) The Court may receive evidence on hearing of an application for an order under subrule (1).
20. Order 54B Rule 5 of the FC rules provides:
“In applying Order 20, Rule 2 to applications to which this Order applies, that rules is to be construed as if paragraph (1)(a) read ‘no reasonable basis for the application is disclosed’.”
21. Accordingly it is submitted that, through the application of FMC Rule 1.05(2) Order 54B Rule of the FC Rules applies such that Rule 13.10(a) of the FMC Rules reads “no reasonable basis for the application is disclosed”.
22. The Court will exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed if:
(a) an applicant's case is “so clearly untenable that it cannot possibly succeed”: (General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 at 129; SDAE v MI MIA [2003] FCA 959 at [19].
(b) were the case to go to trial in the orderly way, it is “apparent that [the application] must fail” (Webster v Lampard (1993) 177 CLR 598; seed also Xie v The immigration Department [1999] FCA 365 at [20].
(c) one can say without doubt, on the whole of the material, that there is “no real question to be tried” (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 10; Miller v Wertheim and Anor [2001] FCA 103; Xie v The Immigration Department [1999] FCA 365 at [20].
(d) the claim is “lacking in substance” (Chung v University of Sydney [2001] FMCA 94 at [18] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186)
(e) there is “no factual substratum to support the claim made” (Applicant A135/2002 v MIMIA [2003] FCA 708 at [6]; see also Applicant A163/2002 v MIMIA [2003] FCA 677 generally.”
24. It is noted that where an applicant is unrepresented, in considering whether or not to exercise its discretion to grand summary dismissal on the ground that no reasonable basis to the application is disclosed, the Court will not limit itself to the arguments put forward by the Applicants but must independently consider whether an arguable case based on the material could be made out. (Chung v University of Sydney [2001] FMCA 94 at [7] to [14] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); Kosi v MIMIA [2003] FCA 340). The respondent admits that no arguable case is apparent from the material. The RRT invited the Applicants to a hearing before it by way of invitations sent the address provided by the Applicants and the invitation indicated that the RRT was unable to be satisfied of their claims based on the evidence before it. As evidence elected not to attend the hearing and unsurprisingly the Auntie concluded that it was unable to be satisfied of the claim is based on the material before it is stated by the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 (per French, Emmett and Dowsett JJ. at [5]:
“In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.” (Emphasis added).”
The applicant husband (“the applicant”) appeared before me today. No appearance was made by the applicant wife. In all the circumstances it was clear the applicant husband appeared for her. He was unrepresented, and was assisted by an interpreter in the Hindi language. Mr. Reynolds appeared for the respondents. At the beginning of the hearing the applicant sought an adjournment for further time to obtain the services of a legal representative. I noted that the applicant had been before this Court the Federal and High Courts for some considerable period of time (the first application to the Federal Magistrates Court was on 31 October 2003) before making another application to this Court on 15 September 2005. When I asked the applicant before me today the reason for not yet obtaining such services, he replied:
“Because I’ve got a friend that who knows that address of a solicitor or a legal representative. Prior to this I didn’t know any legal representative.”
When I asked the applicant to provide details of the legal representative that his “friend” has arranged for him to engage, the applicant replied:
“I don’t know the exact name until now, but I think they’re calling it Paul.”
The respondent opposed the applicant’s request, as having no basis, and submitted that the applicant had already had an adjournment application rejected in the past before His Honour Justice Hill. Mr. Reynolds referred me to paragraph 21 on page 41 of Exhibit PDR 1 where His Honour stated:
“The applicant husband also submitted that I should adjourn the present proceedings for a period of four week to allow him to obtain money from overseas to brief a barrister.”
I note further paragraph 22:
“The fact is that the applicants made no attempts to have legal representation before the magistrate, notwithstanding that some five months went by between the time the applicants filed their application in the Federal Magistrates Court to the time that Court dismissed the application. It does not seem that the applicants have made any real attempt, for that matter, to obtain money in the period from 4 February 2005 when the present appeal was filed until today, although the applicant husband claimed to have made two phone calls to a friend and said that the friend had asked for more time.”
But even further it appears the applicant also made the request for an adjournment before Driver FM. At paragraph 13 of the Judgment of Hill J.:
“The applicant has arranged for the preparation of written submissions, which had been prepared with the assistance of a friend. These were handed to the learned magistrate. At the hearing, the applicant husband told the Court that if he were given “a few more weeks” he could produce material in support of his application. The magistrate noted that there had already been sufficient opportunity to substantiate the application.”
In all the circumstances, I found the applicant’s request for an adjournment to be extraordinary (as I put to him) for a number of reasons. Firstly, the applicant is not someone who has come to a Court in Australia for the first time. It is clear that at the very least, if not earlier, after his application to the High Court the applicant would have been abundantly clear of the possibilities of obtaining the services of a barrister, and yet he has done nothing in this regard. Secondly, I note that on 13 October 2005 the applicant appeared before a Registrar of this Court in relation to the current application where directions were made for the conduct of this litigation. At that time the respondent Minister put him on notice that the application would be opposed. The applicant has at least had reasonable time since then to arrange for the services of a “barrister” to contest the respondent’s proposed rejection of his application. The applicant’s explanation now, that he does not “know what to do”, and that its only now that some “friend” had referred him to some lawyer called “Paul”, is unsatisfactory. Thirdly, the applicant has previously been granted an adjournment for the purpose of obtaining money to brief a barrister with a clear implication that he knew how to, but did not have the money to do so. Further, even with the benefit of all the previous litigation involving the same Tribunal decision, the applicant provided nothing as to how his application now would benefit from his obtaining the services of a lawyer. Nor did I see the vague references to a “friend” and a lawyer who he thought was called “Paul” as being, particularly given all the time the applicant has had for this purpose (at least since he was before Hill J.), a real basis indicating that a legal representative would now be arranged. Therefore, I was of the view that granting the applicant an adjournment would not serve any useful or real purpose. The application for an adjournment was refused.
Before me today the applicant was unable to provide anything further to show error on the part of the Tribunal, and I note that, as I have already said, the grounds of the application put before me now are clearly unparticularised. While I refused the adjournment both on the basis of not accepting the applicant's explanation for the failure to obtain legal advice to date and the real prospects of obtaining any such representation, I did also consider that had there been any particulars put forward there may have been a need for possibly both an opportunity to be given for the obtaining of legal advice and quite possibly the need for a full hearing as opposed to the interlocutory hearing that was conducted today. However, even with the benefit of already having been before this Court, the Federal Court and the High Court, and having had the benefit of a Federal Magistrate, a Federal Court Judge and two Judges of the High Court, comment on the need to provide particulars to substantiate allegations of jurisdictional error, the applicants continue to provide at best mere assertions. I note also the circumstances that both before the Federal and the High Courts the applicants would have been on clear notice by that time of the need to provide particularity, and of the opportunities of obtaining legal advice and representation. Further, I provided the applicant with a final chance before me today to explain what he believed the Tribunal had done “wrong”. His response was he did not know what “mistake” was made. But sought only to tender a letter from his current employer. I accepted this letter from the applicant and marked it as Applicant’s Exhibit 1 (“AE 1”). The letter contained comment on the applicant’s work and the employer’s need for labour. It did not assist the applicant and was irrelevant to the purpose of showing jurisdictional error on the part of the Tribunal’s decision.
As I have already said above the grounds of the application put before me now are clearly unparticularised. Had there been any particulars put forward there may have quite possibly been the need for a full hearing. However, even with the benefit of already having been before this Court, the Federal Court and the High Court and having had the benefit of a Federal Magistrate, a Federal Court judge and two judges of the High Court point out the clear need to provide particulars to substantiate allegations of jurisdictional error, the applicants continue to provide mere assertions. I note in particular that part of the Transcript reproduced at page 49 of Exhibit PDR1 of the affidavit of Patrick David Reynolds where McHugh J., said at [20]:
“The Federal Court dismissed the application on the basis that on appeal would have little or no chance of success. This was due in large part to the defects in the applicants’ draft notice of appeal, which did not give any particulars to substantiate the allegations of jurisdictional error that it contained.”
Knowing this the applicants took no steps to obtain legal services or advice to seek to address the deficiency in how their complaints had been put forward. Nor did they attempt to provide any particularity of any limited basis that could be expected of any unrepresented applicant. In the Federal Court Hill J. said in relation to the appeal from the Judgment of Drive FM:
“There is no error of law on the part of the magistrate and no error of principle can be discerned from the magistrate’s reasons. It must be said, it is not surprising that the applicants were unable to particularise any ground of judicial review.”
In looking specifically at each of the claims before me now:
1)“The Tribunal exceeded its jurisdictional or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution”.
The applicants have not said what the “wrong question” addressed by the Tribunal could possibly be. In looking at the material before me I cannot see that there is any such error in the Tribunal's approach. The Tribunal set out its understanding of the definition of “Refugee” in its decision record in unexceptional terms (CB 77.8 to CB 79.6). It looked at the applicants’ claims as put before it by the applicants and dealt with those claims as put. This complaint must therefore fail as no reasonable basis for this complaint has been disclosed or is apparent on the material before me.
2)“The Tribunal did not take into consideration of the oral evidence regarding my persecution”.
At the hearing before me the applicant was unable to explain what was meant by this complaint. Clearly the applicant gave no oral evidence to the Tribunal. He was invited to a hearing, as I have already stated, and did not attend. Nor for that matter does it appear that he ever attended an interview with the first respondent’s delegate to give any oral evidence. In these circumstances it is quite simply a nonsense to complain that the Tribunal did not consider the oral evidence. If, however, the applicant perhaps intends to complain by this statement that, (as is often the case with applicants) he told his claims to his migration agent who then wrote them out and that the Tribunal did not accept the claims that he made “orally” which were ultimately put before the Tribunal in writing, then clearly also this will not succeed. The Tribunal as revealed by a plain reading of its decision record considered all of the applicants’ claims and made findings which in my view are open to it on the material before it. In this sense this complaint would not rise above a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
3)“The Tribunal denied the natural justice in determine my review application.”
Again no explanation or particulars of this complaint are provided. This complaint was before Drive FM who considered it and the deficiency as to particularity has already been pointed out to the applicants in the decision of FM Driver (see ground 4 at page 31 of Exhibit PDR1).
4)“That the Tribunal was biased, or in the alternative that there was an apprehension of bias.”
Again the applicants provide nothing further to support this claim let alone any evidence to enable the ground to be made out as against the relevant tests established by the authorities. For the applicants’ benefit I should set out that, allegations of bias or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Allegations of alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). In looking at the material before me I cannot see that any reasonable cause of action is disclosed or discerned let alone that this claim can be made out.
5)“That the Tribunal exceeds its jurisdiction or failed to exercise its jurisdiction or denied procedural fairness in that it failed to investigate genuine claims with the requirement of the Migration Act 1958.”
Again no particulars whatsoever are provided. In the context of procedural fairness this is similar to the ground dealt with by FM Driver (see ground 5 page 31 of the Exhibit PDR1 to the affidavit of Patrick Reynolds). The applicants were invited to a hearing and chose not to attend. Further, there is nothing before me and nor do the applicants provide anything to a support the claim that the Tribunal failed to investigate the claims within the requirements of the Act. In any event, while the Tribunal has investigative powers under s.424 of the Act it is not a condition of the exercise of its power that it uses such powers: Minister for Immigration and Multicultural and Indigenous AffairsvSGLB [2004] 78 ALJR 992 at [43]. Again no reasonable cause of action is shown or discernable.
6)“The Tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation.”
Again the need to provide particularity to the claim would have been evident from the previous litigation in this matter. The applicants have again failed to provide anything to support this claim. There is nothing before me in the material to show that the applicants sought any other investigation to be conducted by the Tribunal in relation to their claims. They put their claims, were invited to a hearing, did not attend the hearing, and there does not appear to have been any further call or demand on the Tribunal to have done anything further. Nor does any need for any investigation appear to arise from the circumstances put before the Tribunal. In any event the applicants did not take up the opportunity afforded by the invitation to the hearing where any such requests could have been made to the Tribunal, nor is it wholly accurate to say that the Tribunal ruled out the applicants’ claims as being fabricated. The Tribunal clearly accepted some aspects of the applicants’ claims. In particular, for example, it said that it was quite possible that the applicant husband received some injuries in the context of the widespread civil disturbance (CB 82.1). The crux of the Tribunal's decision is that it could not be satisfied that the applicant, as a Hindu in a predominantly Hindu region, and where the instrumentalities of the State were controlled by Hindus who professed pro-Hindu policies and practices, would not at the very least be afforded State protection as against Muslims who themselves were the subject of adverse action by the State authorities. This ground also discloses no reasonable cause of action let alone indicating any prospects of success.
7)The applicant’s complaint about the Tribunal's use of country information is unclear as drafted, nor was the applicant before me able to explain exactly what the complaint was. The Tribunal clearly relied on general country information available to it. It is of course a matter for the Tribunal as to what weight it gives to such information. A reading of the Tribunal’s “Findings and Reasons” reveals that in this regard the findings that the Tribunal made were open to it on the material before it. The reference to the Tribunal being “preoccupied” again remains unexplained. The claim that the Tribunal did not have a “fresh look” clearly cannot be made out on the material before me. If what is meant here is that the Tribunal approached its task with a “closed mind” then I have already dealt with this issue above. Further, the reference to the “Amnesty International” country information must also fail as having no substance. There is nothing before me to show that the applicant or his adviser put any Amnesty International country information before the Tribunal and that the Tribunal failed to consider this information. This ground also must fail.
None of the grounds put forward by the applicants discloses any reasonable cause of action. Further, the lack of any particularity results in no reasonable basis being disclosed. The applicants’ prospects of success, even if the matter had gone to a final hearing, are negligible.
Notwithstanding the above, given that the applicants were unrepresented before me, I have also separately considered the material in the Court Book. Clearly the applicants were unsuccessful before the Tribunal because they did not put to the Tribunal material sufficient such as to cause the Tribunal to be satisfied that a protection visa should be granted to the applicants: s.65 and s.36(2) of the Act. The applicants were invited to a hearing before the Tribunal after having been clearly put on notice that what had been put before the Tribunal was insufficient to cause a favourable decision for them. They chose without explanation not to attend. Nor did the applicants put anything further to Tribunal as had been promised in the application made to the Tribunal. I also note in the application to this Court the applicants’ reference (a mere reference not necessarily linked to any specific complaint) to the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. I did consider whether it could be argued that in light of that decision, and the statements of the majority of the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 that the Tribunal relied on information contained in the applicants’ protection visa application to determine the review and did not put such information to the applicants pursuant to s.424A(1) in the manner set out in s.424A(2), effectively in writing. However, I note that in the application to the Tribunal (CB 65) in answer to the question as to why they consider themselves to be a “Refugee”, the applicants responded:
“Please refer to above Departmental file.”
I take the view that for the purposes of s.424A(1) that the applicants republished their claims put to the first respondent's Department by this reference and in circumstances where nothing else was put to the Tribunal. In M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] Gray J. states:
“That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).”
I also note SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5] and [6]:
“In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A. I need not set them all out as, in my opinion, one of them is decisive. The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.
In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b). Therefore, the obligations imposed by s 424A do not apply to that information. In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998.)”
Further in SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [11]:
“Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons. Firstly, in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct. Secondly, in the present case, the Tribunal requested the applicant to interpret his original visa application statement. He identified his signature at the bottom of the relevant page and agreed that the statement contained his claim, and explained his reasons for fearing return to China. His attendance at the Tribunal hearing and his responses to questioning were for the purpose of the application to the Tribunal. All of that information, therefore, became information provided by him to the Tribunal for the purpose of the application. I am told that this view was taken by Madgwick J in SZFKL v The Minister (2005) FCA 931, but that Jacobson J took a different view in NAZY v The Minister (2005) FCA 744. I find myself in respectful disagreement with the view taken by Jacobson J. I see no substance in this line of argument. In any event, it can hardly be appropriate for a court, on appeal, to formulate a grounds of appeal and then invite the appellant to adopt it. It would be particularly difficult if the court were then to continue to hear the appeal. Questions might also arise as to costs if the argument were unsuccessful. It is not necessary to consider the matter further.”
In the situation before me the applicants applied for protection visas. They set out their claims (such as they were) as to why they were refugees and therefore should be given a protection visa in a covering letter attached to the protection visa application. When they applied for review to the Tribunal and were asked why they considered themselves to be refugees, the answer was to direct the Tribunal to the first respondent’s file. Despite a reference to a further submission, nothing further was put to the Tribunal. I also note that the promised “detailed submission” was to be put “in support of their refugee claim”. In my view it is clear that the applicants wanted the Tribunal to refer to their refugee claims as contained in the first respondent’s file. The promise of a “detailed submission” was clearly put as being in further support of the refugee claims which had already been made. Clearly the applicants republished their claims to the Tribunal and s.424A(3)(b) applies.
In all the circumstances put before me there is no substance to the grounds set out in the applicant’s judicial review application. No reasonable cause of action or reasonable basis for the relief sought is disclosed, either in the application or the material before me. The applicants have no prospects of success, even if the matter had gone to a final hearing. I uphold the respondent’s Notice of Motion and I dismiss the application on that basis.
Further, in the circumstances of this case, given that the applicants have already sought to re-litigate the same Tribunal decision which has already being through proceedings in three Courts, I note the respondent’s submissions at paragraphs 25 and 26 of the written submissions and accept these submissions for the purposes of this Judgement:
“25.Further and, in the alternative, the Respondent submits that the proceedings are an abuse of process and vexatious.
26.It is an abuse of process for an applicant to institute proceedings in an attempt to re-litigate the same subject matter that has been dealt with by the Courts on numerous occasions (which the Applicants are doing the present case):
(a)in Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ. stated (at 393):
“… 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 that the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings …”
(b)in Applicant A321of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306, Wilcox J found that the doctrine of res judicata replied (at [18]-[19]). His Honour then observed, however, that:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ. in Walton v Gardiner…” and
(c)in SZBJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404, Madgwick J said (at [29]-[30]:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end.
The proceedings, being groundless on their face, are an abuse of process.”
It is very clear in this case that not only have the applicants attempted now to re-litigate the same subject matter that has been dealt with by the Courts on numerous occasions, including the High Court of Australia, but have attempted to do so in a manner that completely disregards important findings made by those Courts in relation to the need to provide some particularity to the grounds of complaint brought forward, and not to simply rely on mere general assertion. I am of the view that this is an abuse of process in the sense as set out above in the relevant authorities, but also in the sense that the applicants have chosen to ignore key findings made by those Courts.
I bear this in mind in considering whether the respondent should be awarded indemnity costs as she has sought. It is of course necessary for there to be something unusual about the circumstances of a case in order to justify an award of indemnity costs as opposed to the usual award of party-party costs for matters of this kind. I also note, and am bound by the Full Federal Court comments in Re WILCOX; Ex parte VENTURE INDUSTRIES PTY LTD and Others (No. 2) (1996) 72 FCR 151 Cooper and Merkel JJ. (Black CJ agreeing) at 158:
“… unless the justice of the particular case requires or some special or unusual feature arises, the rules should not be departed from by the making of some other order for costs in exercise of the jurisdiction conferred under s.43. The generality of the criteria for departing from the usual rule ensures that the discretion to depart from the rule can be exercise whenever the Court is of the view that after applying the criteria to the facts of the particular case, it is just to do so.”
Mr. Reynolds for the first respondent has sought an order of indemnity costs fixed in the sum of $4600. I accept that costs of that order would have been reasonably and necessarily incurred on behalf of the Minister in this matter. Further, I accept that an indemnity costs order is appropriate in the circumstances of this case. This application is an abuse of process. Given the history of litigation concerning these applicants and the Tribunal decision, the applicants would have been clearly on notice of the need to particularise their complaints and to seek to provide any evidence upon which they could rely. Clearly in relation to the application which was before FM Driver the applicants attended a direction hearing on 17 March 2004 and at that time consented to an order that they file and serve any amended application and any evidence upon which they proposed to rely by 28 May 2004. They did not take advantage of that opportunity (see page 27 paragraph 5 of the Exhibit PDR1 to the affidavit of Patrick Reynolds). The Judgement of FM Driver, the Judgement of the Federal Court and the comments of the High Court would leave no doubt of the need to provide details and particulars to support mere assertions of complaint. The applicants in now coming before this Court again have chosen to ignore what was said in this regard by those Courts. In some instances they have repeated claims made without any further supporting argument, let alone evidence. On this basis it is appropriate to award costs on an indemnity basis and I will make an order as Mr. Reynolds has sought.
Further, in all the circumstances it is appropriate that I make the order also sought by the respondent that the Registry of this Court not accept any further application in relation to the same Tribunal decision from either applicant without leave of the Court. Clearly the history of this matter shows that the applicants are attempting to “attack the correctness of the Tribunal's decision on … numerous occasions”: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [53] and further have now sought again to do so without any attempt to address the deficiency in the earlier applications which was repeatedly pointed out to them.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 21 February 2006
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