SZBWF v Minister for Immigration
[2004] FMCA 83
•2 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWF v MINISTER FOR IMMIGRATION | [2004] FMCA 83 |
| MIGRATION – Summary dismissal – whether abuse of process or no reasonable cause of action disclosed. |
Migration Act 1958
Judiciary Act 1903
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Walton v Gardiner (1993) 177 CLR 378
Salemi v Minister for Immigration & Ethnic Affairs (1976) 137 CLR 388
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
Johnson v Gore Wood & Co [2002] 2 AC 1
Chu Sing Wun v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538
Jago v District Court (NSW) (1989) 168 CLR 23
Deangrove Pty Ltd (Receivers & Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173
BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Somanadar v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78
Ripon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Webster v Lampard (1993) 177 CLR 598
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 279
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2003] FCA 677
Xie v Immigration Dept [1999] FCA 365
Ogle v Strickland (1986) 11 FCR 461
Faessler v Neale (1994) 29 IPR 1
Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 524
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
| Applicant: | SZBWF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ2420 of 2003 |
| Delivered on: | 2 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 February 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Applicant: | Adrian Joel & Co |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the motion of the respondent is dismissed.
That the respondent pay the applicant’s costs in relation to the notice of motion as agreed and in the absence of agreement taxed as provided for in Rule 21.11 of the Federal Magistrates Court Rules.
That the matter be listed for hearing before me at 2:15pm on Tuesday
6 April 2004 and that the hearing date of 23 February 2005 be vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2420 of 2003
| SZBWF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is a Notice of Motion filed by the respondent, the Minister for Immigration, Multicultural & Indigenous Affairs, in proceedings which were commenced by the applicants on 10 November 2003 in this Court seeking review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 May 2002 refusing to grant them protection visas. The Notice of Motion was filed on 10 February 2004 seeking orders that the application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the grounds that it fails to disclose a reasonable cause of action and/or that the proceedings are an abuse of the process of the Court. The Notice also relied on grounds of res judicata, issue estoppel and Anshun estoppel. These grounds were not pressed.
Background
The applicants, who are brothers and citizens of India, arrived in Australia on 23 September 2000 aged 17 and 13 respectively. They applied for protection visas on 31 October 2000. Their application
was refused by a delegate of the Minister on 16 December 2000.
On 5 January 2001 they applied for review by the Refugee Review Tribunal (the Tribunal). On 1 May 2002 the first applicant attended a hearing before the Tribunal. On 29 May 2002 the Tribunal handed down a decision affirming the decision of the delegate to refuse to grant protection visas to the applicants. The Minister declined to exercise his power under s417 of the Migration Act 1958 to substitute a more favourable decision for the decision of the Tribunal.
On 4 December 2002 the applicants commenced proceedings in the High Court of Australia, South Australian seeking review of the Tribunal decision. On 7 February 2003 Justice Hayne remitted the matter to the Federal Court. On 30 June 2003 Justice Selway made Orders for the conduct of the proceedings in the Federal Court. In particular he ordered that certain material (including an amended application specifying precisely the error or errors upon which the decision under review was challenged, any further affidavit material to lay a foundation for the allegations, an outline of submissions and a Notice of Motion seeking an extension of time within which to commence the proceedings if required) should be filed and served by 8 August 2003. It was also ordered that in the event that such order was not fully complied with the applicant would be called upon at the adjourned directions hearing (fixed for 22 August 2003) to show cause why the matter should not stand dismissed. On 22 August 2003 His Honour ordered that in the absence of any steps having been taken in accordance with the orders made on 30 June 2003 the application was dismissed and the applicant was to pay the respondent’s costs fixed in the sum of $1,500.
On 18 September 2003 the applicants filed an application for an extension of time in which to file and serve a Notice of Appeal to the Full Court of the Federal Court from the decision of Justice Selway on 22 August 2003. In an accompanying affidavit the first applicant stated that he had received advice from Mr Clisby his solicitor, that his case was not strong and should be withdrawn, that he could not obtain a second legal advice because he had no money to pay another solicitor but that he did not agree with the advice. He could not provide instructions to Mr Clisby as he was not aware of the process. He had sought a second legal opinion and considered that he had a strong case. The applicant filed a Notice of Discontinuance with respect to this application on 5 November 2003.
The applicants commenced proceedings in this Court on 10 November 2003. The application was supported by two affidavits sworn by Adrian Joel, the present solicitor for the applicants. In an affidavit sworn 5 November 2003 Mr Joel deposed that after the decision of the Tribunal the applicants had retained a solicitor in Sydney and instructed him to commence legal proceedings, that the solicitor had forwarded the matter to a solicitor in South Australia (Mr Clisby) who had commenced proceedings in the High Court which were remitted to the Federal Court. The circumstances surrounding the litigation were presented in a statement signed by the first applicant (who was unable to swear to the contents of the statement being in detention). This statement was to the effect that in late November 2002 the applicant had retained a solicitor in Sydney to start a review of his matter in the High Court. It continued ‘At some time, I think during August 2003, I received a letter from my lawyer, attached to another letter from a lawyer called Mark Clisby. To the best of my memory this letter said words to the effect I didn’t have a strong case.’ The statement continued that the applicant received a letter during September 2003 dated 9 September 2003 attaching a further letter from Mr Clisby (advising his Sydney solicitor of the orders made on 22 August 2003 by Justice Selway). The applicant then attended the office of his lawyer in Sydney. It was his understanding that he had lost his case. He saw another lawyer in October 2003. He now understood that his matter did not proceed because a lawyer in South Australia did not do what a judge wanted in preparing the case. He did not know why the case was sent to South Australia or what it was about.
The other affidavit sworn by Mr Joel on 9 November 2003, annexed a Notice of Discontinuance of the application to the Full Court of the Federal Court dated 3 November 2003 attached to an authority to discontinue dated 8 October 2003 signed by the first applicant and states that the applicant authorised and directed his lawyer to file a Notice of Discontinuance of his Full Court Federal Court appeal. It stated that he had advised his lawyer that he did not wish to proceed with the appeal and understood that the lawyer (Mr Joel) would try to ‘reactivate my asylum case’ in the Federal Magistrates Court.
On 26 November 2003 at a directions hearing conducted in these proceedings orders were made by consent for the applicants to file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which they proposed to rely on or before 29 January 2004.
On 29 January 2004 the applicants filed an amended application which raises grounds significantly different from those contained in the original application. The original application filed on 10 November 2003 had contended that there was a denial of natural justice and jurisdictional error on the basis that the Tribunal sent a letter to the applicant inviting him to attend a hearing and stated in that letter that it had looked at all the material relating to the application whereas in fact it had not looked at all the material relating to the application and the applicant relied on the letter to his detriment. In the amended application the grounds relied on are as follows:
1. It is both a breach of natural justice, procedural fairness and jurisdictional error for the Tribunal member to;-
a)Adopt the alleged contents of Country Information IRBDC reinfo advice IND 26376 ex 17 February 1997 – presented at paragraph 2 of page 6 of the Tribunal decision when a more recent authority from the same source also referred to within the same paragraph contradicts the view expressed. At page 3 paragraph 3 of the document entitled IND 34468 ex 12 June 2000 four specific categories of family members are recognised to be at risk. In summary, those categories are;
Family members who are:
(i)in hiding or in other ways assisting terrorists,
(ii)are at risk of being interrogated about the whereabouts of wanted persons,
(iii)children of wanted persons who are at risk of being beaten by the police in order to obtain information about the whereabouts of the wanted person. If the police can not get the person the family will be harassed and
(iv)family members of suspected militants risk having problems with the police. According to Ravi Nair it is a general trend all over India that family members are at risk if the person searched for is not available.
b)The principal applicant has asserted that he faced persecution as a result of being a family member of a past member of a terrorist group and that he had problems with the police and been placed at risk evidencing a consistent pattern of harassment.
2. The Tribunal has:-
a)relied upon dated Country Information extracts and not applied or ignored more recent material and/or
b)quoted selectively from a number of documents upon which it had relied and/or
c)the above categories may support the inference that the Tribunal did not approach its task in good faith.
The amended application was accompanied by two further affidavits. In an affidavit sworn on 29 January 2004 the first applicant stated that after his Refugee Review Tribunal decision he had arranged for a migration agent to prepare and forward a Ministerial appeal to the Minister. This was refused some time around October/November 2002, whereupon his migration agent referred him to a lawyer who told him he had a good case and should go to Court (at the end of November 2002). He paid this solicitor $3,500 for the preparation and conduct of his case and was now aware that this solicitor had forwarded his case to a second solicitor in South Australia. The applicant attested that apart from receiving a letter around February 2003 he did not hear from his solicitor until September 2003 when he received notification that his proceedings had been finalised in Court by dismissal on 22 August 2003. He stated that until September 2003 he had not heard of the solicitor with conduct of the case in South Australia nor had any contact with him. He did not understand how this had occurred. He attended a legal aid office for asylum seekers and attempted to complete forms and file them at the Federal Court Sydney Registry. He thought that by doing so he could appeal the Tribunal decision. He did not know that he was applying for an extension of time to appeal against the dismissal of the application by the Federal Court in Adelaide. The appeal forms were completed by his solicitor who wrote on the forms that he had a strong case although the applicant did not know why he thought so. Had he known that he had a lawyer in South Australia he would have told him to do all things necessary to continue with the matter. He now knew that he had requested an extension of time. He also now knew that the South Australian solicitor did not write to his former solicitor in New South Wales until the time for him to do the things asked by the Court had finished.
A further affidavit sworn by Mr Joel set out the train of events. He deposed that having read the court book (which did not contain certain items of country information referred to in the decisions of the delegate and the Tribunal) he was not aware of what issues prompted the commencement of the initial proceedings and that in the absence of an examination of country information it was not possible to form a view as regards the application of the decision in Lie (Muin v RRT (2002) 190 ALR 601). Mr Joel stated that the Notice of Discontinuance in the Federal Court was filed as the application for the extension of time ‘was filed to enable Notice of Appeal with respect to the second [i.e. South Australian] solicitor’s failure to comply with the Court’s Orders, which lead to the dismissal of the matter. Apart from the character of the Application, a Bridging Visa enabling the Applicant’s continued stay in Australia could not be issued with respect to such an application.’
Subsequently a further affidavit by the first applicant was sworn on
17 February 2004 and filed on 18 February 2004 in which the applicant stated that before receiving a letter at some time in September 2003 from his then solicitor in Sydney including letters from a solicitor in South Australia he had not been aware that a judge in Adelaide had ordered that an amended application and affidavits be filed. He had not heard of the solicitor in Adelaide. It clarified that a legal advice centre in Surry Hills had suggested that he seek the assistance of his then Sydney solicitor to file the application to the Full Federal Court in Adelaide, that he had obtained such assistance and faxed the application to the Federal Court Registry in Adelaide. He then spoke with his former migration agent and sought the assistance of his present solicitor, Mr Joel.
The Tribunal decision
The Applicant claimed that his father was a terrorist who worked for the Khalistan Liberation Force (KLF). He claimed that his parents were murdered by KLF members in 1994 after his father decided that he wanted to leave the organisation. He claimed that he was detained by police a few days later and questioned about the KLF for a period of two or three days. He was warned repeatedly by KLF members that they intended to recruit him when he was an adult. He was detained and questioned by police on several occasions prior to his departure for Australia.
The Tribunal accepted that the Applicant’s parents were killed in 1994 by KLF members because the Applicant’s father wished to leave the organisation. However, it did not accept that the Applicant was detained and questioned by the police on several occasions from 1994 to 2000. It found that it was implausible that police would have considered him a source of useful information during this period of time, and accepted independent information that indicated that family members of militant Sikhs would not have been of interest to police at this time.
The Tribunal also rejected the Applicant’s claim to have been targeted by the KLF as there was no independent evidence to suggest that the KLF forcibly recruited members. It found that this claim was inconsistent with the independent evidence that indicated that the activities of militant groups were virtually non-existent toward the end of the 1990’s.
The Tribunal did not accept that the Applicant was of adverse interest to the authorities or members of the KLF at the time of his departure from India. Accordingly, the Tribunal was unable to be satisfied that he had a well-founded fear of persecution within the meaning of the Convention. The second applicant had made no independent claims and hence could not be granted a protection visa.
The Notice of Motion
The respondent seeks summary dismissal of these proceedings under Rule 13.10 of the Federal Magistrates Court Rules. A summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, Salemi v MIEA (1976) 137 CLR 388; Walton v Lampard (1993) 177 CLR 378). Furthermore the power to dismiss a proceedings for abuse of process is ‘an exceptional power which ought to be sparingly exercised and only in exceptional circumstances’ (Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279). The onus of satisfying the Court that there is an abuse of process lies on the as the party alleging it. Nonetheless, the Court has power to ‘prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people’ (Hunter v Chief Constable of the West Midlands Police (1982), AC 529 at 536 per Lord Diplock. As was suggested in Hunter at 536 ‘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. Again, proceedings within the jurisdiction of a Court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that Court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, the 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’. (Also see Walton v Gardiner (1993) 177 CLR 378 at 393). There is a public interest in the finality of litigation and a party should not be vexed twice in the same matter (Johnson v Gore Wood & Co [2002] 2 AC 1). It is also clear that the exercise of the power of summary dismissal (or to grant a permanent stay) ‘is such that its exercise is not restricted to defined and closed categories’. (See Jago v District Court (NSW) (1989) 168 CLR 23 at 74 per Gaudron J).
In this instance it is said that there is an abuse of process given the history of the prior proceedings in relation to the Tribunal decision of 29 May 2002. The question whether there is, in a particular case, an abuse of process will depend upon all of the circumstances of the case including the purpose of the applicant in seeking the order of the Court. In Deangrove Pty Ltd (Receivers & Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173 Sackville J pointed out that while there is English authority to suggest that it is an abuse of process for a litigant to commence fresh proceedings founded on the same cause of action as previous proceedings where the previous proceedings have been terminated in consequence of the litigant’s failure to comply with self-executing orders (see [21]) an important factor in such cases was the absence of any explanation for the failure to comply with a self-executing order. In Deangrove the applicants had provided an explanation for their failure to comply with the self-executing orders (based on advice from Counsel that the proceedings had been instituted prematurely and hence were not properly constituted). According to Sackville J this strongly indicated that the failure to comply with the self-executing orders was not a product of contumacious behaviour but rather a decision based on Counsel’s advice that the proceedings should not be pursued. In such circumstances although the decision not to comply with the orders could be seen as deliberate in the sense of a conscious decision it could not be said that the failure to comply reflected wilful disobedience to the orders made by the Court [26]. His Honour also had regard to the fact that it was not a case where the applicants simply disregarded Court directions and, for that reason, could be expected to flout directions given by the Court (at [27]). In such circumstances Sackville J concluded that the institution of later proceedings did not constitute an abuse of the process of the Court (at [28]).
In this case the orders made by Justice Selway on 30 June 2003 were not self-executing. They stated that if the applicant did not comply he would be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed. There is no evidence before the Court as to what actually occurred at the adjourned directions hearing. It was ordered that in the absence of any steps having been taken in accordance with the earlier orders the application was dismissed. The affidavit sworn by Adrian Joel on 28 January 2004 annexes a letter dated 12 August 2003 sent by the South Australian solicitor to the applicants’ former solicitor stating that the case was not a strong one, and asking the solicitor to inform his clients and forward to them attached Court orders which were said to be self-explanatory. The letter continued that if we do not hear from you ‘it is likely the case will stand dismissed on 22 August 2003’. This appears to indicate that the South Australian solicitor did not propose to take any steps to comply with such orders in the absence of further instructions from the New South Wales solicitor. The letter of 9 September confirms that orders were made to dismiss the matter on 22 August 2003.
In his unsworn statement the applicant referred to two letters from his solicitor. In contrast, in his affidavit of 17 February 2004 the first applicant deposed that prior to receiving letters sometime in September 2003 from his former solicitor including a letter from a South Australian solicitor called Mark Clisby he was not aware that a Judge in Adelaide had ordered an amended application and affidavits be filed and had never heard of Mr Clisby. In oral evidence he agreed that he had received a copy of the letter from Mr Clisby dated 12 August 2003. In cross-examination he stated that he had received this letter in August or September 2003 and then went to see his lawyer. While I am not satisfied, given these inconsistencies, that the first applicant had no correspondence from his Sydney solicitor prior to receipt of the letter of 9 September 2003 it has not been established that the applicant both knew that the orders of 30 June 2003 required compliance with filing orders in default of which the application could be dismissed and wilfully disregarded such orders. He provided an explanation at the time of institution of these proceedings. I accept that the applicant relied on the advice of his then solicitor (who has not given evidence in these proceedings). No sufficient reason or evidence has been advanced to satisfy me that the applicant was wilfully and obstinately disobedient to the court orders. It is clear that his solicitors took no action to comply with the orders, but the applicant’s account of his actions after notification of dismissal of the proceedings is consistent with his stated desire to have his application for review of the Tribunal decision considered by a Court. He sought the assistance of a legal centre and then of his former lawyer, attempted to file a document in the Sydney registry of the Federal Court and faxed the application for extension of time to file and serve a Notice of Appeal to South Australia. Further, in these proceedings he has, with the assistance of his present solicitors, complied with all directions for filing of documentation.
While not self-executing it is clear that the orders of Justice Selway made on 30 June 2003 and 22 August 2003 had the effect that the proceedings were dismissed without consideration of the merits of the applicants’ claims. On balance having considered all of the material before me including the first applicant’s explanations for the failure to file any amended application as ordered by Selway J and for his actions thereafter I am not satisfied the failure to comply with the orders made by Selway J constituted an abuse of the process of the Court.
Moreover, while the applicant voluntarily discontinued the proceedings in the Full Court of the Federal Court on 5 November 2003, I accept that he did so on the advice of his present solicitor and that that advice reflected factors such as the nature of the grounds relied upon in that application, the purpose of the application for the extension of time and concern that a bridging visa enabling the applicant’s continued stay in Australia outside a detention centre would not be granted in connection with such an application. The prior proceedings were not finalised by judgment after a hearing or by consent orders which could thus be seen to have dealt with all matters in dispute. (cf Chu Sing Wun v MIEA (1997) 47 ALD 538). In this case there has been no consideration of the merits of the applicant’s claim at all. While arguments based on res judicata or Anshun estoppel may be raised and determined in the context of a full assessment of the claims at a final hearing (see for example BC v MIMA [2001] FCA 1669 and [2002] FCAFC 221 and Somanadar v MIMA [2000] FCA 1192) in this case there has not yet been such a full assessment of the claims.
The manner in which the applicants have proceeded following the Tribunal decision has had the effect of allowing them to remain in Australia for a considerable time. However the circumstances of this particular case and the explanations provided by the first applicant are not such as to satisfy me that these proceedings were bought as a means of obtaining some advantage for which the proceedings were not designed or some collateral advantage beyond what the law offers (cf Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78) or simply to delay the inevitable. I have borne in mind that a proceeding should not be dismissed summarily as an abuse of process merely on the ground that it appears, at the early stage of the hearing of the motion bought for that purpose, to advance a highly implausible claim which will very probably fail (Australian Building Industries Pty Ltd v Stramit Corp Ltd (FedCFA Full Court, QG 122/97, 1 December 1997 unreported). This is not a case where the applicants either failed to disclose prior proceedings or where they seek to litigate or re-litigate issues which were considered and decided or resolved by consent orders in earlier proceedings (cf Ripon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at 28 per Handley JA).
In all the circumstances of this case, bearing in mind that the power to dismiss a proceeding for an abuse of process is an exceptional power which ought to be sparingly exercised and only in exceptional circumstances, I am not satisfied that it has been established that there is an abuse of process such as to warrant summary dismissal of the proceedings. In reaching this conclusion I have taken into account the particular circumstances and explanations given in this case. It may well be that in different circumstances, the fact of prior proceedings in this or another Court in relation to review of a Tribunal decision (whether finalised by a judgment which considered the merits, by consent orders, self-executing orders or by a discontinuance) may, depending on all the circumstances of the case, amount an abuse of process. However this is not such a case.
The ‘no reasonable cause of action’ argument
The general principle is that the exercise by a Court of a power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed is appropriate only where it is made to appear that the claim is ‘so clearly untenable that it cannot possibly succeed’ (see General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236, Webster v Lampard (1993) 177 CLR 598, Lee v MIMIA[2002] FMCA 279, Applicant A135/2002 v MIMIA [2003] FCA 708, Applicant A163/2002 v MIMIA & Ors [2003] FCA 677 and Xie v Immigration Dept [1999] FCA 365).
The solicitor for the respondent addressed at some length the submission that no reasonable cause of action was disclosed in the amended application based on the material before the Court in particular the reasons of the Tribunal. Counsel for the applicant indicated that he had not been briefed to appear in the final proceedings. He raised generally the arguability of the claims made in the amended application. Thus the Court has not had the assistance of full submissions from both parties in considering whether the case is tenable (compare General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 and Ogle v Strickland (1986)
11 FCR 462 and Faessler v Neale (1994) 29 IPR 1). The question the Court must decide is not whether the applicant would probably succeed in his action but whether the material before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent it must fail. It must be plain and obvious that the grounds for the application are unarguable (Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194) or that it is a hopeless case with no chance of success.
The respondent argues that there is no substance to any of the grounds for review advanced by the applicant in the present application. It is submitted that no error, let alone a jurisdictional error, is revealed in the Tribunal approach or findings. However, unlike the situation in cases such as SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 524, this is not a case whereby the amended application suffers from a complete lack of particularity.
Ground 1 of the amended application takes issue with the Tribunal’s treatment of allegedly conflicting sources of country information. The applicants allege denial of natural justice or lack of procedural fairness and, without further clarification of the manner in which it is said to arise, a jurisdictional error. The choice of and weight to be given to country information is a matter for the Tribunal (NAHI V MIMIA [2004] FCAFC 10 at [11]) although there are circumstances in which a Tribunal’s use of independent information may occur in a context which involves a lack of procedural fairness. (See NARV v MIMIA [2003] FCAFC 262). While considerable obstacles to the success of this ground are raised by the respondents based on the authorities such as NAHI I am not satisfied that at this stage it is clear that the applicant ‘must fail if this application were to go to trial’ (see Xie v Immigration Department [1999] FCA 365). This is not a case where the application raises grounds which merely seek impermissible merits review, does not give any particulars which address the specifics of the Tribunal decision in issue (cf Kosi v MIMIA [2003] FMCA 340 and SZBIC v MIMIA [2003] FMCA 524) or where there is absolutely no factual substratum for the claim made (cf Applicant A135/2002 v MIMIA [2003] FCA 708 and Applicant A163/2002 v MIMIZ [2003] FCA 677). In these circumstances I am not satisfied that no reasonable cause of action is disclosed. The applicant should have the opportunity for his claims to be determined after a full hearing.
Ground 2 is expressed very generally and does not identify the claimed ‘dated’ and ‘more recent’ country information referred to (except by implication as the material referred to in ground 1) or specify the ‘selectivity’ complained of by the applicants. An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker which is not to be lightly made and which must be clearly alleged and proved (SBBS v MIMIA [2002] FCAFC 361 at [43]). As Their Honours said in SBBS at [44] ‘the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies on is the written reasons for the decision under review’ (at [44]). Were this the only ground contained in the amended application it may well be that it could be said that on its face and on the material before the Court the applicant did not raise any arguable case or even that the ground could not possibly succeed. It is not to the point that the applicants could raise other grounds. They have not done so. However, it is not necessary for me to determine this question at this stage as, even if this ground could not possibly succeed, the application is to dismiss the proceedings (not merely to strike out part of the amended application).
It is the case that the election to come to this Court might, without more, mean that the application would not be heard until some considerable time into the future. Indeed the matter was set down for hearing on 23 February 2005. While I am not satisfied that there was an improper purpose in the sense of an attempt to take advantage of such delay, I consider that in all the circumstances of this case it is appropriate that the final hearing proceed as expeditiously as possible. I propose to bring forward the hearing to the first available date.
Each of the parties indicated that in the event that they were successful they would seek costs. The respondent has been unsuccessful in the application for summary dismissal. Counsel for the applicant submitted that the Minister’s application was so weak that it should not have been brought and that an order for costs on an indemnity basis might appropriately be made given that there had been a suggestion of abuse of process where there was no basis for such suggestion. It was submitted that this was an unfounded allegation analogous to an allegations of fraud. I am not pursuaded by this argument. First the notice of motion was based not only on a claim of abuse of process but also on an argument that no reasonable cause of action was disclosed, an argument which does not suggest fraud. Secondly there are numerous authorities to suggest that in an appropriate case the institution of proceedings following disposition of the same issue in prior proceedings may amount to an abuse of process. Such cases reflect the public interest in avoiding duplication of cost and use of Court time and prolonging the time before a matter is finally resolved and the need to avoid bringing the administration of justice into disrepute. Indemnity costs are not appropriate. It is however appropriate that the respondent, having been unsuccessful in the application for summary dismissal, should meet the costs of the applicant in relation to the summary hearing. Costs should be as agreed and in the absence of agreement, taxed as provided for in Rule 21.11 of the Federal Magistrates Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 March 2004
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