SZBXA v Minister for Immigration

[2004] FMCA 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXA v MINISTER FOR IMMIGRATION [2004] FMCA 96

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – motion for summary dismissal – decision of RRT previously the subject of judicial review application in the Federal Court – application dismissed at an interlocutory stage – leave to appeal against a refusal to vacate that order refused by the Full Federal Court – application to the High Court for special leave to appeal discontinued shortly after the present application filed in the Federal Magistrates Court in respect of the same RRT decision – application dismissed as an abuse of process and vexatious.

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
Johnson v Gore Wood & Co [2002] 2 AC 1

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NADM of 2002 v Minister for Immigration [2002] FCAFC 376
NALE v Minister for Immigration [2003] FMCA 366

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
Rogers v The Queen (1994) 181 CLR 251
SZAWW v Ministerfor Immigration [2003] FMCA 479
SZBIC v Minister for Immigration [2003] FMCA 524
SZBJM v Minister for Immigration [2003] FMCA 599
Walton v Gardiner (1993) 177 CLR 378

Applicant: SZBXA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2451 of 2003

Delivered on: 1 March 2004

Delivered at: Sydney

Hearing date: 1 March 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms B Rayment
Sparke Helmore

ORDERS

1. The application to review the decision of the RRT is dismissed pursuant to rules 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $2,672, plus the daily hearing fee of $685 prescribed in the Federal Magistrates Court Rules for a half day hearing.

3. No further application by the applicant to review the decision of the RRT shall be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2451 of 2003

SZBXA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me a notice of motion filed on 16 December 2003 on behalf of the respondent Minister in this matter.  The Minister's motion is that an application for judicial review filed on 13 December 2003 by the principal applicant in this matter be dismissed.  The principal application is to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 January 2002 and handed down on 5 February 2002.  The RRT refused to grant a protection visa to the applicant. 

2. The Minister's motion seeks the dismissal of the principal application in accordance with the doctrine of res judicata and issue estoppel and also pursuant to rules 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The motion also seeks costs and any other order that the court sees fit.

3. The Minister proceeds today upon the notice of motion and an affidavit in support by Rohan White filed on 18 December 2003.  I received that affidavit for the purposes of these proceedings.  The Minister also relies upon written submissions filed in chambers on 24 February 2004.  These were augmented in oral submissions today by Ms Rayment.  The applicant opposes the motion and filed written submissions on

   
   

   14 January 2004. 

4. The relevant background facts and circumstances are set out in Mr  White's affidavit and also in the Minister's written submissions in paragraphs 1 through to 12.  Those written submissions also attach a chronology of events.  I adopt paragraphs 1 through to 12 of the Minister's written submissions and the annexed chronology for the purposes of this judgment:

   By notice of motion filed on 16 December 2003, 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 Rohan White sworn on 18 December 2003, the court book filed on 10 April 2002 in Federal Court of Australia proceedings number N156 of 2002 and the chronology attached to these submissions.

   These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Federal Magistrates Court of Australia on 13 November 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 9 January 2004.

   The applicant filed written submissions in the Federal Magistrates Court of Australia on 14 January 2004.

   Background

   The relevant background to this matter is contained in the chronology attached to these submissions.

   Claims and findings

   The applicant claimed that he was a member of the Bangladesh Nationalist Party (“BNP”) (court book, page 69.6).  He claimed to have been vice-president of a BNP branch unit and as a result, he was targeted by members of the rival Awami League (“AL”) (court book, page 69.9).  In March 1999, he was attacked by members of the AL (court book, page 70.1).  He faced arrest over two false and politically motivated charges involving illegal possession of weapons and murder (court book, page 70.2).  He also claimed that he could not expect help from the judiciary as they are controlled by the Government. Accordingly, he fled Bangladesh to allegedly avoid persecution. 

   The RRT accepted that the applicant was a minor official of the BNP (court book, page 73.5), but was not satisfied that he left Bangladesh to avoid persecution over his political opinion.  It found that he left Bangladesh because he had been selected to be part of the United Nations (“UN”) election monitoring teams in East Timor in 1999 (court book, page 72.2).

   The RRT was not satisfied that the applicant would have been given a sensitive UN post if he was facing charges of involvement in murder and illegal possession of weapons (court book, page 72.7).  Accordingly, the RRT found that the applicant was not, as he claims, a person hiding from police and under threat of arrest on grave criminal charges (court book, page 72.10).

   The RRT found it ‘implausible’ that the applicant could have continued his employment in a reputable international aid organisation if he were known to be a person wanted by police on serious charges (court book, page 73.2).  In addition, the RRT found that the applicant “would easily have been found and arrested” if the police had an adverse interest in him (court book, page 73.3).  In this regard, the RRT noted that the applicant was in regular employment with a known organisation until shortly before leaving Bangladesh as well as his “evolving explanations for the lack of arrest” (court book, page 73.4).

   The RRT also accepted that it was possible that the applicant was attacked by a group of AL thugs over his political work with the BNP (court book, page 73.9) but was not satisfied that one such incident amounted to ‘persecution’ (court book, page 73.10).  The RRT also relied on independent country information to find that the Bangladeshi authorities are willing and capable of protecting the applicant from harm (court book, pages 74-75.3).

   Moreover, the RRT rejected the veracity of the applicant’s claims to fear harm from within his own party and because of his opposition to the inclusion of the Jama’at-e-Islami party in the BNP-led coalition. In this regard, the RRT found that the applicant had ‘invented’ these claims to support his application for a protection visa It was not satisfied that he was of concern to any party (court book, pages 75.4-75.10).

   Chronology

DATE	EVENT	REF
02.09.99	Applicant arrived in Australia.	CB 14
22.09.99	Applicant applied for a protection visa.	CB 1-23
09.11.99	Delegate of the respondent refused protection visa application.	CB 38 - 42
30.11.99	Application for review to RRT.	CB 43 - 46
26.11.01	Applicant attended RRT hearing.	CB 52
05.02.02	RRT handed down decision affirming the decision of the delegate	CB 63
01.03.02	Applicant filed an application for judicial review under s.39B of the Judiciary Act1903 (Cth) in the Federal Court of Australia. ·          Proceedings no. N156 of 2002.	Affidavit of Rohan White sworn 18.12.03 Annexure B
14.05.02	Justice Wilcox dismissed the application with costs because the applicant failed to appear when the matter was called for hearing.	Affidavit of Rohan White sworn 18.12.03, Annexure C
03.06.02	Applicant filed a notice of appeal in the Full Court of the Federal Court of Australia seeking to appeal against the orders and judgment of Justice Wilcox of 14 May 2002. ·          Proceedings no. N513 of 2002	Affidavit of Rohan White sworn 18.12.03 Annexure F
21.08.02	Applicant filed a notice of motion and an accompanying affidavit in the Federal Court of Australia seeking to set aside the orders of Justice Wilcox dated 14 May 2002.	Affidavit of Rohan White sworn 18.12.03 Annexure D
03.09.02	Justice Wilcox refused the applicant’s notice of motion to set aside orders.	Affidavit of Rohan White sworn 18.12.03 Annexure E
24.10.02	Applicant filed a notice of motion and accompanying affidavit in the Full Court of the Federal Court of Australia seeking an adjournment of the scheduled hearing date of 6 November 2002.	Affidavit of Rohan White sworn 18.12.03 Annexure G
06.11.02	Justices Madgwick, Emmett and Conti dismissed the applicant’s notice of motion and application for leave to appeal from the orders of Justice Wilcox given on 14 May 2002 and 3 September 2002. Notice of appeal filed on 3 June 2002 held to be incompetent because of the absence of leave to appeal from the orders made by Wilcox J on 14 May 2002.	Affidavit of Rohan White sworn 18.12.03 Annexure H
03.12.02	Applicant filed in the High Court of Australia, an application for special leave to appeal from the judgment of Justices Madgwick, Emmett and Conti of 6 November 2002. ·          Proceedings no. S445 of 2003	Affidavit of Rohan White sworn 18.12.03 Annexure I
14.05.03	Applicant filed a draft notice of appeal in the High Court.	Affidavit of Rohan White sworn 18.12.03 Annexure J
13.11.03	Applicant filed an application in the Federal Magistrates Court of Australia. ·          Proceedings no. SZ2451 of 2003.	Affidavit of Rohan White sworn 18.12.03 Annexure M
14.11.03	At approximately 3:00pm the applicant attended the offices of the solicitors for the respondent to obtain the respondent’s consent to discontinue his proceedings.  Consent was refused on the basis of a concern that the applicant was merely going to re-file another application. At approximately 4:41pm the solicitors for the respondent received a facsimile from the High Court Registry attaching a signed notice of discontinuance that had been filed in the High Court on 14 November 2003.	Affidavit of Rohan White sworn 18.12.03, para 15            Affidavit of Rohan White sworn 18.12.03 Annexure L

1. In substance, I am asked to summarily dismiss the principal application because it seeks to review a decision of the RRT that has previously been reviewed.  The applicant's original application in the Federal Court, filed on 1 March 2002, was dismissed by His Honour Wilcox J when the applicant failed to appear.  Leave to appeal against a decision by Wilcox J declining to vacate his dismissal order was refused.  Both Wilcox J and the Full Court gave reasons for their decision. 

2. The applicant sought special leave in the High Court to appeal against the decision of the Full Federal Court.  However, four days before that special leave application was to be heard he discontinued that special leave application.  One day previously he filed the present application in this Court.  It is apparent from the affidavit of Mr White that the Minister's lawyers would have resisted the discontinuance of the special leave application if they could have.

3. The applicant submits to me that his case is analogous to the cases of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 dealt with in the High Court. He seeks the opportunity to pursue a procedural fairness argument. However, on my perusal of the court book prepared for the purposes of the former Federal Court proceedings, it does not appear to me that the case is analogous to those of Muin and Lie.  It is true that the High Court decision in Muin and Lie was made after the applicant's initial proceedings were instituted in the Federal Court.  However, by the time the matter reached the Full Federal Court, Muin and Lie had been decided.  Nevertheless, neither Wilcox J nor the Full Court saw anything in the judicial review application to warrant a detailed examination of the issues.

4. It is also true that since the decisions by Wilcox J and the Full Court, the High Court has substantially clarified the present nature of judicial review of migration decisions.  That was the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. The legal basis for judicial review is now somewhat different. The special leave application which the applicant had been pursuing in the High Court would have been the ideal opportunity for him to argue that he should have an opportunity to put forward legal arguments on the legal basis now available. He did not take that opportunity. Rather, four days before he would have had that opportunity he discontinued the High Court proceedings.

5. I have doubt whether the principles of res judicata and issue estoppel are applicable in this case given the substantial changes to the nature of the jurisdiction which have occurred.  In addition, the applicant has not obtained a final judgment in either the Federal Court or the High Court on the issues raised in his previous judicial review application.  However, it would bring the administration of justice in this Court into disrepute and would be grossly unfair to the Minister to permit this application to go any further.  In that regard I adopt paragraphs 16 through to 21 of the Minister's written submissions for the purposes of this judgment:

   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.[1]  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.[2]  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.[3] 

   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 failed to appear when his application was called on for hearing before Justice Wilcox on 14 May 2002 and it appears that the applicant is seeking to re-agitate in this Court issues that have already occupied the time of the Full Federal Court of Australia.[4]  Furthermore, by filing repeated applications with respect to the same RRT decision, the proceedings are an abuse of process.[5]

   The applicant also discontinued his application for special leave to the High Court on 14 November 2003 (the week before the hearing was scheduled to commence, namely on 18 November 2003) and one day after he had already filed a fresh application in the Federal Magistrates Court (namely, on 13 November 2003).

   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.

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

   [2] 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.

   [3] Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.

   [4] NADM of 2002 v Minister for Immigration [2002] FCAFC 376 per Magwick, Emmett and Conti JJ.

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

6. In addition, I have regard to my reasons in SZAWW v Ministerfor Immigration and in SZBIC v Minister for Immigration [2003] FMCA 524 in relation to abuse of process.

7. I will dismiss the application as an abuse of process.

8. It is unnecessary to consider whether the application should also be dismissed as disclosing no reasonable cause of action.  However, the comments made by Wilcox J and the Full Federal Court, as well as my own examination of the papers, all indicate that the applicant would have poor prospects of success on a judicial review application. 

9. I have also been asked to award indemnity costs against the applicant and to declare the applicant a vexatious litigant.  It is very clear to me that the present application to review the decision of the RRT is an abuse of process.  It was instituted for the purpose of taking advantage of hearing delays in this Court in such proceedings.  If the applicant had had a serious interest in agitating the arguments he seeks to advance in this Court he should have taken the opportunity of a hearing on his special leave application in the High Court.  Because the application for judicial review is an abuse of process and because the proceedings in this Court were instituted for an ulterior purpose, namely, to take advantage of hearing delays in the Court the Minister should receive her costs of responding to the present application on an indemnity basis.  I note that this would be the second indemnity costs order made against the applicant.  An indemnity costs order was also made by the Full Federal Court.  I am told that none of those costs have yet been paid.

10. Ms Rayment asks that I fix an amount of costs.  She tells me that the Minister’s costs up to but not including today’s hearing are $2,672. 

    
    

    I accept that those costs are reasonable on an indemnity basis.  In addition, the Minister should receive the hearing fee prescribed in this Court’s costs scale for a half day hearing.

11. I am satisfied that the present application in this Court is vexatious as well as being an abuse of process. Accordingly, the application should be dismissed pursuant to rules 10(b) and 10(c) of the Federal Magistrates Court Rules. However, the applicant has not yet habitually and persistently instituted vexatious proceedings to the extent that he needs to be declared a vexatious litigant. Should he institute further legal proceedings in respect of the same RRT decision then this Court or another court may need to make that decision. There may also be a question whether security for costs ought to be required in respect of any further proceedings in relation to the same decision of the RRT.

1. Because the present application to review the decision of the RRT is a vexatious one and an abuse of process, the applicant should not be permitted to institute further proceedings in this Court in respect of the same RRT decision. Leave of the Court should be required for any future such application. I will therefore order that the application to review the decision if the RRT is dismissed pursuant to rules 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules; the applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $2,672, plus the daily hearing fee of $685; and no further application by the applicant to review the decision of the RRT shall be accepted for filing except by leave of the Court.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 March 2004