SZDNE v MIMIA

[2004] FMCA 717

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNE v MINISTER FOR IMMIGRATION [2004] FMCA 717

MIGRATION – Review of RRT decision – application by respondent Minister for summary dismissal – whether no reasonable cause of action has been disclosed by applicant – whether the proceeding is vexatious or an abuse of process – where RRT decision already dismissed by Federal Court and Full Federal Court – where review of original RRT decision subsequently lodged with Federal Magistrates Court – where applicant claims that a basis for review exists which was not previously argued before the courts.

Federal Magistrates Court Rules 2001

Chan v MIEA (1989) 169 CLR 379
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Applicant A210/2002 v MIMIA [2004] FCA 286
SZBWF v the Minister [2004] FMCA 83
Wong v MIMIA (2004) 204 ALR 722

Applicant: SZDNE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1344 of 2004

Delivered on: 14 October 2004

Delivered at: Sydney

Hearing date: 14 October 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr I Archibald

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(b) and (c) of the Federal Magistrates Court Rules.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1344 of 2004

SZDNE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application made under Rule 13.09 of the Federal Magistrates Court Rules for orders that the application filed on 7 May 2004 be dismissed pursuant to Part 13, Rule 13.10(b) and/or 13.10(c) of those rules or in the alternative, that the application be dismissed pursuant to Rule 13.10(a) of the Rules on the ground that no reasonable course of action is disclosed.

2. I am grateful to Mr Chami, who appears on behalf of the applicant to the notice of motion - the respondent to the proceedings - for his helpful outline of submissions from which much of the history of these proceedings is taken. 

3. The applicant arrived in Australia in 1994 and first sought asylum in 1995. His application was refused by a delegate in 1997 whereupon he appealed to the Refugee Review Tribunal who decided to uphold the decision of the delegate in 1998. In December 1998 he sought review of the decision of the Tribunal from the Federal Court. The matter was heard by Tamberlin J and his decision is reported at (1999) 57 ALD 613. That decision was appealed to a Full Bench of the Federal Court which dismissed the appeal on 19 November 1999 under the same name with the citation [1999] FCA 1620.

4. Some 17 months thereafter, without having previously been removed from the country, the applicant joined the Muin and Lie class action.  He remained within that class action until that part of it with which he was associated was dealt with by Gaudron J and failed to take the steps required of him pursuant to her orders.  Finally on 7 May 2004 he lodged an application for judicial review of the original decision of the Tribunal in this Court.  The application which he made has been amended by an application which I permitted to be filed in Court this morning prepared by his counsel.

5. It does not seem to be in dispute that the factual matrix within which all these proceedings have moved is that the applicant, a native of Nepal but a person who follows the Buddhist philosophy and not Hindu, did, together with his brother, kill a cow owned by his father contrary to the prohibition against bovicide contained in Part V section 7 of the Mulki Ain, 1962 (the Nepalese Code of Conduct).  It is accepted that the crime of bovicide brings with it the possibility of a substantial penalty which may include imprisonment for a period of up to 12 years.

6. It was argued before the Tribunal that the imposition of this law upon the applicant constituted a form of religious discrimination such as to bring him within the convention definition of a refugee.  The Tribunal found that the law was a law of general application designed for the purposes of protecting public order in Nepal by preventing occurrences which might be likely to inflame the Hindu majority.  The Tribunal found that it was not a law aimed discriminately at non Hindu persons, it applied equally to Hindus and non Hindus within the country.

7. The application for review was considered in detail by Tamberlin J who reviewed the authorities as they then stood and gave particular consideration to Chan v MIEA (1989) 169 CLR 379 at 429 and Applicant A v MIEA (1997) 190 CLR 225 at 258-9. At [22] his Honour set out the seminal views of McHugh J relating to the enforcement of a generally applicable criminal law.

8. The matter was then considered again by the Full Bench which set out the findings made by the Tribunal and noted the references to Chan and Applicant A made by Tamberlin J. The Full Bench said at [10]:

   “The primary judge then referred to two decisions of this Court in which it has been held that the fact that the enactment of the law of general application may have been prompted by religious values does not of itself provide a basis for a conclusion that a person contravening that law is at risk for persecution for reasons of religion.  The judgments accept that there might well be persecution for reasons of religion if the sanctions for breach of the law are applied in a discriminatory or selective fashion against individuals or groups adhering to a particular religion or religious belief or to whom particular religious beliefs are attributed.  But in the absence of evidence of discriminatory enforcement, any threat of persecution by reason of enforcement of the law would not be on a convention ground.  The decisions are MIMA v Rahmin Darboy [1998] FCA 931 and "Z" v MIMA [1998] FCA 1578.”

   The Full Bench reviewed the approach taken by Tamberlin J to these cases and upheld his views. At [14] – [15] their Honours said:

“Nor is it open to the appellant to contend that the law against bovicide was enforced or applied in a discriminatory or selective manner.  The RRT’s findings on this issue were well open to it and preclude such a contention.  Indeed those findings are inconsistent with the appellant acting as he did by reason of his religious convictions.  They were also inconsistent with any threat of prosecution being associated with his religion or even with the fact that he is not a Hindu.

In short the primary judge was correct in holding that the appellant had not demonstrated any reviewable error on the part of the RRT.  The appeal must be dismissed with costs.”

1. The applicant in the proceedings today argues that what the Tribunal did not do and what was not made a ground for review before Tamberlin J or the Full Court was to agitate whether there was a legitimate object behind the law so that, he says, he can bring himself within the views of the High Court in Chen Shi Hai v MIMA (2000) 201 CLR 293 at 303. [29] where the Court said:

“Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatments involved and, ultimately, whether it offends the standards of civil societies which seek to meet the cause of common humanity.  Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involves such a significant departure from the standards of the civilised world as to constitute persecution.  And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.”

1. The difficulty I have with the argument put by Mr Archibald on behalf of the applicant is that it neatly elides away from the requirement set out in Chen for there to be different treatment of different individuals or groups.  The facts in this case clearly show that all individuals and groups are dealt with in the same manner.  Bovicide is truly a law of general application.  It may have a different effect on different people because persons such as the applicant have no religious views concerning cows, but the law is the same for him as it is for the highest caste of Brahmin who may reside in Nepal.

2. The applicant also has a difficulty, at least so far as this Court is concerned, in that in Applicant A210/2002 v MIMIA [2004] FCA 286 Whitlam J on appeal from a Federal Magistrate said [5]:

   “The reasons for judgment in the Federal Magistrates Court show that the particulars of the amended grounds in the current proceeding agitate the same kind of matters as were relied on in that earlier proceeding.  Mr Silva submits, however, that the grounds of review in the two proceedings are different and do not overlap.  He instances the issue of the Tribunal's intent, which, he says, is of central importance to the question of a want of bona fides, but of no necessary significance to an allegation of denial of natural justice.  That may be so, but such a ground should have been raised in the earlier proceeding.  It was unreasonable for the applicant not to do so at that time and he is estopped from doing so now according to the principle laid down in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. It is true that important High Court decisions on natural justice were handed down shortly before the judgment in the Federal Magistrate's Court and have been handed down since that time, but circumstances do not permit the applicant to rerun under the rubric what is in substance the same case as the one he has already lost.”

3. The decision of Whitlam J is binding upon me so that I am unable to hear a case which might have been argued in a different way before Tamberlin J or the Full Bench.  This is so even if I did not believe, as I do, that the point being raised now by Mr Archibald is not capable of succeeding because it is based upon a misreading of the Chen Shi Hai decision. 

4. I am satisfied that the re-agitation of the case in this manner constitutes an abuse of the processes of this Court.  I am satisfied that if I was to allow the case to continue, it would be a case that was so clearly untenable that it cannot possibly succeed and it is apparent that it must fail (see SZBWF v the Minister [2004] FMCA 83). I am also satisfied that this application is prohibited by the principle of res judicata as considered by Lindgren J, in Wong v MIMIA (2004) 204 ALR 722 at [43] for the reasons given by Mr Chami in his submissions between paragraphs 14 and 24.

5. In all the circumstances, I do not believe it is appropriate that this case should be allowed to continue and I therefore grant the application made in the notice of motion under rule 13.09 and dismiss the substantive application pursuant to Rule 13.10(b) and (c) of the Federal Magistrates Court Rules. The applicant in the proceedings must pay the costs of the respondent Minister which I assess in the sum of $2,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  25 October 2004