SZCAL v Minister for Immigration
[2006] FMCA 279
•3 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAL & ORS v MINISTER FOR IMMIGRATION | [2006] FMCA 279 |
| MIGRATION – Summary dismissal application – whether abuse of process – prior proceedings were summarily dismissed as disclosing no reasonable cause of action – new ground not dealt with in past proceedings – explanation provided – no abuse of process. |
| Migration Act 1958, s.425 Federal Magistrates Court Rules 2001, rr.13.10(b), 13.10(c) |
| SZCAL & Ors & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 731 SZCAL &Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1098 Walton & Gardiner (1992-1993) 177 CLR 378 VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255 SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 52 Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101 Applicants M16 of2004 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 SZFOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1374 Australian Building Industries Pty Limited v Stramits Corp Limited Federal Court of Australia Full Court unreported 1 December 1997 Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Chu Singh Wun v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538 |
| Applicant: | SZCAL & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
| File Number: | SYG2462 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 16 January 2006 |
| Date of Last Submission: | 2 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The notice of motion filed by the first respondent on 10 October 2005 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2462 of 2005
| SZCAL & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the Court by way of notice of motion filed by the first respondent on 10 October 2005 seeking orders that an application filed on 1 September 2005 be dismissed on the basis that the applicants are estopped from bringing the proceedings or in the alternative the proceedings amount to an abuse of the Court’s process.
The background to these proceedings is that the applicants, who are citizens of India, applied for protection visas in December 2002. The applications were refused and they sought review by the Refugee Review Tribunal (the Tribunal). By decision handed down on
11 November 2003 the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicants protection visas.
On 28 November 2003 the applicants sought review of the Tribunal decision by application filed in this Court. For convenience the first applicant is referred to hereafter as the applicant. The application did not contain any grounds of review. The applicant filed an amended application on 24 May 2004 which claimed that jurisdictional error was committed by the Tribunal in not accepting the applicant’s claims that he had been the subject of persecution in India. In particular the applicant claimed that the Tribunal erred in rejecting his claims and evidence that he was persecuted on religious grounds. He referred to the situation in India and claimed that the Tribunal failed to take account of circumstances in India and the claimed impact on him and refused to believe that he and his family were attacked because he was a Hindu. The application also took issue with the findings of the Tribunal that rejected his claim that he was the subject of persecution because of his political activities and its finding that he was not a politically important figure in the RSS.
On 23 December 2004 the first respondent filed a notice of motion seeking summary dismissal of those proceedings on the basis that the amended application disclosed no reasonable cause of action and/or was frivolous or vexatious.
On 16 May 2005 Federal Magistrate Raphael upheld the respondent’s motion ordering that the application be dismissed and that the applicant pays the respondent’s costs. (See SZCAL & Ors & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 731). His Honour found that the application did not disclose any reasonable cause of action (at [6]). His Honour referred to two complaints made by the applicant at the hearing of the motion about the conduct of the Tribunal hearing and of the migration agent. First the applicant had complained that the hearing was conducted over a telephone line on which there was a disturbance and that he had difficulty understanding what was going on. Federal Magistrate Raphael stated at [7]:
Unfortunately, the applicant did not make any reference to this complaint in his original application or his amended application. He has not produced for me any evidence by way of the tape or the transcript with which I could assess the validity of the claim he has made. He has not stated any of these facts upon affidavit.
The second complaint was that the applicant had told his migration agent everything and that his migration agent did not do a proper job. His Honour observed at [9]:
Once again I have not been made privy to the substance of the complaints about the migration agent. I am satisfied that the application as it presently stands does not disclose a reasonable cause of action and having read the Tribunal’s decision I cannot believe there is any real utility in allowing the applicant an opportunity to amend because it seems to me that the Tribunal has made its decision upon grounds which are peculiarly within its own jurisdiction. The Tribunal’s conclusion that the applicant could relocate is a finding of fact which this Court cannot impugn and which would override any problem associated with the other findings.
On 3 June 2005 the applicant filed a notice of appeal from the decision of Federal Magistrate Raphael, contending that there had been a denial of natural justice. On 28 June 2005 Edmonds J dismissed the notice of appeal as incompetent and ordered that an application for leave to appeal be filed by 23 July 2005. On 21 July 2005 the applicant filed an application for leave to appeal and supporting affidavit. The affidavit addressed the reasons for the delay in filing the notice of appeal. The draft notice of appeal relied on two grounds: first that Federal Magistrate Raphael erred in failing to hold that the Tribunal made a jurisdictional error in making a critical finding without evidence and secondly that the Tribunal made a jurisdictional error as it applied an incorrect test as to whether the applicant would have access to state protection in India.
On 9 August 2005 Graham J dismissed the application for leave to appeal (see SZCAL &Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1098). His Honour found that no matter was raised which suggested that the Federal Magistrate had fallen into error in deciding that the amended application raised no matters which would justify a review by the Court of the Tribunal’s decision (at [13]). His Honour also stated (at [14]) that:
It does not seem to me that there was any obligation on the Federal Magistrate to consider whether there might be an arguable case on the hearing of the amended application for review of the RRTs decision.
What Federal Magistrate Raphael was required to consider was whether or not the amended application raised any reasonable cause of action warranting consideration of the RRTs decision.
His Honour noted that the solicitor for the applicant (who had been self-represented before the Federal Magistrate) indicated that his client wished to raise a “no evidence” ground. He discussed this ground. However Graham J went on to say at [20]:
I do not consider it necessary to deal with the other new grounds that are now proposed. It is clear that the findings of the Federal Magistrate were not attended with sufficient doubt to warrant a grant of leave to appeal.
The applicant then commenced the current proceedings seeking review of the same Tribunal decision by application filed on 1 September 2005. The application of 1 September 2005 relies on a number of general and unparticularised grounds of review. However by affidavit sworn and filed on 1 November 2005 the applicant contended that he had been denied natural justice because the hearing conducted by the Refugee Review Tribunal on 14 October 2003 was by telephone and that he did not have a proper chance to understand all the questions of the Tribunal. He annexed a transcript of the Tribunal hearing to an affidavit and provided an explanation for why the hearing transcript had not been produced in the prior proceedings.
While the notice of motion relies on alternative grounds of estoppel and abuse of process the first respondent’s written and oral submissions were confined to a contention that the proceedings should be dismissed as an abuse of the process of the Court. The solicitor for the first respondent indicated that she did not seek to rely on estoppel.
It was contended for the respondent that the present circumstances came within the principles in Walton & Gardiner (1992-1993) 177 CLR 378 at 392 – 393 per Mason CJ, Deane and Dawson JJ as follows:
The inherent jurisdiction of a superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … yet again, proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior Court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “The inherent power which any Court of justice must possess 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.
It was pointed out that the applicant’s first application for review was summarily dismissed by the Federal Magistrate on the basis that it disclosed no reasonable cause of action and that the application for leave to appeal was unsuccessful, the Federal Court finding that the decision of the Federal Magistrate was not attended with sufficient doubt to warrant a grant of leave to appeal and that the draft notice of appeal did not raise any arguable grounds. It was submitted that the applicant had filed the proceedings in an attempt to circumvent the unfavourable decision received in the Federal Court and that the present application disclosed no reasonable cause of action. Further, as Federal Magistrate Raphael had indicated, the Tribunal findings in relation to relocation would override any problems associated with other findings of the Tribunal.
The respondent also sought an order that the Registry not accept any new application from the applicant seeking to challenge the decision of the Refugee Review Tribunal without leave of the Court.
I raised with the solicitor for the respondent my concern that the applicant had not had a final determination of the substance of his application for judicial review of the Tribunal decision and now sought to raise a ground relating to conduct of the Tribunal hearing which had not been dealt with in the earlier proceedings.
The solicitor for the first respondent sought and was granted the opportunity to file further written submissions on the question of whether the proceedings should be dismissed as amounting to an abuse of process in the particular circumstances of this case despite the absence of a final decision on the substantive application in the prior proceedings. It was submitted that it was not necessary for there to have been a final decision on an application for a subsequent application seeking judicial review of the same decision to constitute an abuse of process. Reference was made to VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018. However while VWZG demonstrates the range of factors that may establish abuse of process, in that case the prior judgment and orders in issue “were final” (at [10]). It does not assist the respondent. It is the case that in SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255 Moore J dismissed an application for leave to appeal from a decision of Federal Magistrate Driver which had summarily dismissed proceedings where a prior application for constitutional writs (remitted by the High Court to the Federal Court) had been dismissed for non-compliance with procedural orders before any final hearing of the application. However Moore J found at [20] that the Federal Magistrate was:
“probably wrong if he viewed the application of the appellant as an abuse of process simply because the appellant commenced in the Federal Magistrates Court, proceedings of substantially the same character as those commenced in the High Court and remitted to this Court and summarily dismissed by this Court (because the appellant had not complied with procedural directions and orders)”.
Moore J went on to state at [21]:
“… on a fair reading of the Federal Magistrate’s reasons for judgment, his Honour almost certainly viewed the application before him as an abuse of process because it suffered from the same vice as the application which had been dismissed in this Court by Selway J. That is, it was an application for constitutional writs devoid of particulars disclosing any substantial basis for the prosecution of the application. It was open to the Federal Magistrate to form this view and dismiss the application on the ground that it was an abuse of process. While his Honour may have taken a different view given that the appellant was then unrepresented, he was not precluded from adopting the approach he did.”
In contrast, in this case, when one considers both the present application and the affidavit of 1 November 2005 (which I consider is appropriate given that the applicant is self-represented) it cannot be said to “suffer from the same vice” as the application dismissed by Federal Magistrate Raphael. It articulates a basis for a ground of review and is accompanied by the transcript of the Tribunal hearing.
The respondent also referred the Court to the decision of Federal Magistrate Driver in SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 52 in which his Honour dismissed a matter pursuant to Rules 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001 and ordered that no further application to review the decision of the Tribunal or the delegate of the first respondent be accepted for filing except by leave of the Court. In that case all the previous proceedings had been determined on an interlocutory basis, but nonetheless his Honour had dismissed the proceedings summarily. Federal Magistrate Driver found at [6] that “The repeated bringing of judicial review applications which are doomed to fail and which raise essentially the same grounds is an abuse of process” (emphasis added).
In this case that is not what has occurred. The initial application did not raise the ground which the applicant now seeks to raise. The applicant was self-represented and although he sought to raise his concern about the conduct of the Tribunal hearing in the course of the hearing of the motion, that complaint was not the subject of his Honour’s decision. Notably all that Federal Magistrate Raphael said in relation to that ground and the other complaint that the applicant made at the hearing was that the applicant had not produced for him any evidence (such as by way of the tape or the transcript) from which he could assess the validity of the claim he had made. Nor had he stated any of the facts upon affidavit. In other words, his Honour did not make any findings as to the validity of such a claim other than that he was unable to assess it. His finding that the Tribunal’s finding that the applicant could relocate would override any problems associated with other findings is not a finding that addresses the possibility that a jurisdictional error could be demonstrated in the procedures of the Tribunal in the manner now contended for by the applicant.
Moreover the applicant has provided in his affidavit of 1 November 2005 an explanation for his failure to provide a hearing tape in the first proceedings (that he “did not have any idea about the hearing tape that from where I can get the tape or how or when I should get that”). His evidence in this respect was not challenged. While the solicitor for the respondent contended that the transcript revealed no matters of concern, I note that there was no order made at the directions hearing as to the filing of an amended application. There are no written submissions as would be provided prior to a final hearing because the directions made relate to the hearing of the notice of motion. Moreover the applicant’s complaint relates to auditory aspects of the hearing (which was conducted by telephone). Depending on the precise concerns raised by the applicant, it may be necessary to listen to the hearing tapes to assess the claims. This remains to be seen. What is clear is that he seeks to take issue with the conduct of the Tribunal hearing (while expressed in terms of natural justice his claims may also be seen to raise s.425 of the Migration Act 1958 (Cth)) and he has filed a transcript of the hearing in support of his claims.
There is authority that an order summarily dismissing proceedings on the ground that no reasonable cause of action is disclosed is an interlocutory order. (See Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101). This is consistent with SZBIC and the fact that on 28 June 2005 Edmonds J dismissed the notice of appeal as incompetent and ordered that an application for leave to appeal be filed by the applicant in relation to the decision of Federal Magistrate Raphael. In any event, the decision of Federal Magistrate Raphael was not a judgment on the merits of the claim which the applicant now seeks to pursue. Moreover while Graham J dismissed the application for leave to appeal his Honour not only suggested that there was no obligation on the Federal Magistrate to consider whether there might be an arguable case for review of the Tribunal decision but also did not consider it necessary to deal with other new grounds that were proposed because his Honour was of the view that it was clear that the findings of the Federal Magistrate were not attended with sufficient doubt to warrant a grant of leave to appeal.
Thus, there has been no prior judicial determination of the applicant’s claims in relation to the conduct of the Tribunal hearing. It might be said that the applicant ought to have raised this claim in his application or amended application in the prior proceedings (although I note that he has provided an unchallenged explanation). However, in Applicants M16 of2004 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 Gray J found that where an applicant had not had a judicial determination of an issue of procedural fairness, even though the procedural fairness claim was not but could have been raised in the prior proceedings, there could be no res judicata, estoppel or issue estoppel in relation to that point (at [67]). Further, in that case Gray J found that even if the applicants ought to have raised the denial of procedural fairness issue in the prior proceedings, it had not been the subject of final judgment and so there was no possibility in the proceedings before him of a judgment being given that was at variance or in conflict with any previous judgment. Thus no occasion arose to consider whether there were special circumstances for the purposes of the application of Anshun estoppel principles (although his Honour suggested that such special circumstances were established). Critically, his Honour went on to state (at [71]) that in the circumstances of that case:
It would be unrealistic to suggest that the making of the application in the present proceeding amounts to an abuse of the process of the Court. It is a sufficient answer to this argument to say that the applicants are perfectly entitled to mount a case based on denial of procedural fairness, when such a case has not been the subject of any prior proceeding, and there are good reasons why the first applicant would have been reluctant to reveal the information that would have formed the basis for raising the procedural fairness issue. It is in the interests of justice that the first applicant should have her day in Court on that issue. See SZFOG at [22] – [38].
In this case, as indicated, the applicant has provided an unchallenged explanation in affidavit evidence as to why he had not produced the transcript of the Tribunal hearing (which was essential to pursuit of the claim) albeit this was not a case of ‘reluctance’ to raise a ground such as was considered in Applicants M16. The applicant had sought to raise the ground before Federal Magistrate Raphael, but he had not produced any evidence on which the validity of the claim could be assessed. He has explained this failure. In these circumstances I am not satisfied that his application was brought for the collateral purpose of extending his stay in Australia.
In the particular circumstances of this case, I am not satisfied that I should exercise my discretion to dismiss the proceedings as an abuse of the Court’s process. I bear in mind that the power of summary dismissal should be exercised with exceptional caution. Indeed it has been held that a proceeding should not be dismissed summarily as frivolous or vexatious or an abuse of process merely on the ground that it appears at an early stage of the hearing of the motion brought for that purpose to advance a highly implausible claim which will very probably fail (Australian Building Industries Pty Limited v Stramits Corp Limited Full Court of the Federal Court, unreported 1 December 1997). The power to dismiss a proceeding for an abuse of process is an exceptional power which ought to be sparingly exercised (see Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 at 279) and there is authority that an abuse of process is not constituted by a failure to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings (Chu Singh Wun v Minister for Immigration & Ethnic Affairs (1997) 47 ALD 538).
In this case the prior proceedings were not the subject of a final judgment of the merits of the application. An issue is raised which would not be overcome (if established) by the Tribunal’s finding in relation to relocation. The applicant foreshadowed such a ground (albeit expressed in terms of natural justice rather than a breach of s.425) on a prior occasion but did not have the evidence for it to be assessed in the context of the respondent’s past application for summary dismissal. He has given an explanation for the absence of such evidence which was not challenged by the respondent. No abuse of process is established. The notice of motion should be dismissed and the matter should be listed for a final hearing.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 3 March 2006
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