SZEFC v Minister for Immigration

[2005] FMCA 1469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEFC v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1469

MIGRATION – Refugee – application for summary dismissal – previous litigation of the same matter that had been discontinued by the applicant – abuse of process – no reviewable error – application summarily dismissed.  

Migration Act 1958, ss.424A(1), 424A(2), 424A(3)(a), 36(2), 65, 91R, 91S, 417
Federal Magistrates Court Rules 2001, rr. 13.10, 13.11, 21.02(2)(a)

Samson v Minister for Immigration & Multicultural Affairs [2001] FCA 837
Walton v Gardiner (1993) 112 ALR 289
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236
Chung v University of Sydney [2001] FMCA 94
Yo Han Chung v University of Sydney [2002] FCA 186
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant: SZEFC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 902 of 2005

Judgment of: Nicholls FM

Hearing date: 16 September 2005

Date of Last Submission: 16 September 2005

Delivered at: Sydney

Delivered on: 16 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms A. Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed in upholding the respondent’s Notice of Motion pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001.

3. Pursuant to rule 13.11 of the Federal Magistrates Court Rules 2001 the applicant, in relation to the Tribunal decision before the Court, not be permitted to commence further proceedings without leave of the Court.

4. The applicant pay the first respondent’s costs set in the fixed amount of $1000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 902 of 2005

SZEFC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFARIS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. I have before me a Notice of Motion, filed by the respondents on

   
   

   13 May 2005, and the affidavit in support sworn 13 May 2005 of Adele Alex, a solicitor in the employ of the respondent’s solicitors, seeking summary dismissal of the application for judicial review filed by the applicant on 12 April 2005.  The history of this matter is:

   1)The applicant, who is a Fijian national of Indian ethnicity arrived in Australia on 8 March 2002.

   2)On 15 March 2002 both the applicant before the Court today, and the applicant’s children, lodged an application for a protection (class XA) visa with the first respondent’s Department.

   3)On 4 June 2002 a delegate of the respondent Minister made a decision to refuse to grant protection visas to the applicant and her children.

   4)On 25 June 2002 the applicant and her children applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.

   5)On 29 May 2003 the Tribunal affirmed the decision of the delegate of the Minister to refuse the grant of protection visas to the applicant and her children.

   6)On 19 August 2004 the applicant and her children applied for judicial review of that Tribunal decision. The hearing, initially listed for 7 March 2005, was part heard and then was adjourned to 30 March 2005 to give a further opportunity for the applicants to seek legal assistance and submit written submissions.

   7)No submissions were made, and on 17 March 2005 a Notice of Discontinuance was filed.

   8)On 12 April 2005 an application (“the current application”) was filed with the Court that related only to the applicant mother from the earlier application (“the earlier application”).

   9)On 27 April 2005 the Court heard an application by the first respondent for costs in relation to the earlier application. The applicant attended.

   10)On 16 September 2005 the current application was brought before the Court pursuant to the respondent’s Notice of Motion, filed on 13 May 2005, seeking summary dismissal.

2. I have before me:

   1)The affidavit of Adele Alex, a solicitor in the employ of the respondent’s solicitors, sworn and filed on 13 May 2005.

   2)The respondent’s outline of submissions, dated 29 August 2005.

   3)The affidavit of the applicant affirmed and filed on 14 September 2005.

   4)The applicant’s written submissions, that were filed in Court on 16 September 2005.

3. The respondents submit that the applicant discontinued proceedings in relation to the Tribunal decision of 29 May 2003, and then commenced these proceedings in relation to the same Tribunal decision some three weeks later. They seek summary dismissal on the basis that the proceedings are frivolous, vexatious, or an abuse of process. There is judicial authority on the question of when proceedings amount to an abuse of the process of the Court. In Samson v Minister for Immigration & Multicultural Affairs [2001] FCA 837 Beaumont J, in dismissing an application before the Federal Court, for an extension of time that had already been heard by the Federal Court and in which an application to the Full Federal Court had been dismissed, described it as a clear attempt to “re-agitate” an application. Further, in Walton v Gardiner (1993) 112 ALR 289 the High Court said:

   “…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, 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 - JD_112-ALR-289fntxt25 [1982] AC 529 at 536 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”.

4. However, it is abundantly clear that the power to summarily dismiss an application should be exercised with extreme caution and orders striking out a proceeding should only be made where, for one of a number of reasons, there is no real question to be tried, or where the claims are clearly untenable or cannot succeed (General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236). It has also been stated that where an applicant is self-represented, as if often the case in refugee matters before this Court, that the Court should independently consider whether an arguable case based on the material could be made out by the applicant. (Chung v University of Sydney [2001] FMCA 94 at [14]; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186).

5. The respondent submits that:

   1)Although acknowledging that the power to dismiss proceedings as an abuse of process is one that ought to be sparingly exercised, in these circumstances, it is inevitable that this application would be unsuccessful if heard on a substantive basis.

   2)In the circumstances where the applicant has discontinued her original application and then re-filed an application shortly afterwards, the applicant ‘demonstrates a clear abuse of the process of the Court’.

6. At the hearing before me today the applicant stated from the Bar table that she had had no intention of discontinuing the earlier application. However, she acknowledged that the signature on the “Notice of Discontinuance” was her signature, but that she did not “actually comprehend my name being there on the list of details of persons filing the notice.” She indicated that as she was the main applicant in the case that her name should be there, but that she believed that the notice only applied to her children. She claimed that she had been assisted by a “friend” who was a lawyer (who had also helped her husband in his separate proceedings) and that the intention was that the children discontinue their part in the application. Even putting to one side that none of this was presented to the Court in any evidentiary context, there is nonetheless an important difficulty for the applicant. The applicant:

   1)Filed the Notice of Discontinuance of the earlier proceedings on 17 March 2005 (signed on 12 March 2005).

   2)Filed the current application on 12 April 2005.

   3)Attended the hearing on 27 April 2005 of the respondent’s application for costs in relation to the earlier application.

   At the costs application on 27 April 2005, two weeks after the filing of the current application, the applicant gave no indication that it was her intention not to be included in the Notice of Discontinuance in relation to the proceedings. The applicant participated in that costs hearing, submitted matters relevant to the costs issue and gave every outward appearance that the earlier proceedings had been discontinued. When pressed on this issue at the hearing before me today, the applicant stated that she had not yet realised that the mistake had been made and that ‘up till then in my mind it was just my children that were out and I was still in…”. This is difficult to reconcile with the fact that when she attended the costs hearing on 27 April 2005 in relation to the earlier proceedings, she had already filed the current application.

7. I accept the submissions made by the respondent’s representative in this regard.  The sequence of events is very clear. A Notice of Discontinuance was filed by the applicant on 17 March 2005.  The applicant has confirmed, and I am satisfied, that it was her signature that appeared on the Notice of Discontinuance, and there is no evidence before me to support the applicant's assertion from the Bar table that she did not understand the nature of that document. Further, the applicant’s conduct in attending, participating in, and what she said at the subsequent costs hearing show nothing to support her claim now that she did not understand the nature and application of the Notice of Discontinuance. I have difficulty accepting the applicant’s claim now when the costs hearing, that is the application for costs by the first respondent, clearly arose out of the earlier application being discontinued by way of the Notice of Discontinuance.

8. What I find compelling in support of this conclusion is that the applicant filed the second application, that is, the current application before the Court, then attended a costs hearing in relation to the earlier application and made no mention of any problems at that time in relation to the Notice of Discontinuance, and in particular that it did not reflect her true intention at the time.  After having clearly acted in a contrary manner, which still remains unexplained beyond some reference to a lack of understanding, the current application was filed prior to the costs hearing in relation to the earlier application. In the absence of any acceptable explanation, I take the view that the applicant, in filing the current application, did so because she must have known that the Notice of Discontinuance that she had signed in relation to the earlier application applied to her as well as her children, but for whatever reason subsequently changed her mind.

9. In these circumstances I accept the respondent's submissions and, as I said, emphasise that the applicant's opportunity to properly raise this issue was at the occasion of the costs hearing. She did not do so and further, did not do so in circumstances where she had already lodged a second and fresh application to the Court. On this basis also she is not now able to treat this matter as a request to set aside the Notice of Discontinuance and the subsequent costs order, although I note that the applicant has not sought to do this. In fact, I understand her to be pressing the current application and not asserting that the Notice of Discontinuance should be set aside as it related to her. This further could go to the issue that she understood that the Notice of Discontinuance applied to her as well as to her children.

10. In any event there are no grounds on the material before me requiring the matter to go through to a final hearing. On reading the decision record of the Tribunal, the applicant appeared before a hearing of the Tribunal and was given an opportunity to explain her claims. Essentially these were, that following a coup in May 2000 in Fiji, that the attitude of indigenous Fijians towards Fijians of Indian ethnicity had changed and that she had been verbally abused and threatened with physical harm, that she risked violence and that she had observed the assault of a fellow Fijian of Indian ethnicity.  The Tribunal's record of what occurred at the hearing is at page 5 of the Tribunal's decision record (Annexure “A” to the affidavit of Adele Alex). The decision record states that the Tribunal discussed the applicant's claims in as comprehensive a manner as was required and put to the applicant its concerns and in particular that the claimed harm did not appear to be serious physical harassment or serious physical mistreatment in a Convention sense (page 6, paragraph 25). The Tribunal put to the applicant that it was difficult to accept as serious the claims of fearing for the life and safety of her children in circumstances where she had waited some four months after the granting of a visa for Australia to leave Fiji.

11. The Tribunal discussed with the applicant independent information that it had before it which, on what is before me, was not information that needed to be put to the applicant pursuant to s.424A(1) of the Migration Act 1958 (“the Act”) in the manner specified in s.424A(2), as it appears that that information, regarding Fijian police and effective state protection, falls within the exception contained in s.424A(3)(a): see the Full Federal Court authority of Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 in regards to the exact meaning of that section. The Tribunal found the applicant to be a very intelligent woman who was not prone to exaggerating her claims. It accepted the applicant as a truthful witness and accepted that the applicant had a genuine subjective fear of physical harm in Fiji, and the Tribunal accepted that on one occasion the applicant had been robbed and had been subjected to verbal abuse and that Fijian youths had thrown stones at the school where the applicant taught. Further, it accepted that at least on one occasion the applicant's husband had been insulted by indigenous Fijians. But it was not satisfied that, either on an individual basis or in their totality, the claimed incidents of mistreatment suffered in the past by the applicant rose above “low level harassment”. It found that this was not sufficient to meet the requirement for “persecution” as set out in the Refugees Convention and as amended by s.91R of the Act. The Tribunal found that the incidents of harm in the past were not determinative of a claim for a protection visa, although they may be useful indicators of risk of future harm, and therefore addressed the critical issue as to whether the applicant faced a real chance of Convention based persecution in the foreseeable future upon return to Fiji.

12. The Tribunal looked at a number of independent reports and, as I have already said, all of that information falls within the exception set out in s.424A(3)(a) of the Act. Based on that evidence and looking at the circumstances as put forward by the applicant, while the Tribunal was prepared to accept that there were some shortcomings with the Fijian police, the Tribunal was not satisfied that the protection which is available to all Fijians through their police force was such that it could give rise to a real chance that the applicant would suffer Convention based persecution. The Tribunal made a finding that the Indian community in Fiji is protected by the existing laws of Fiji, that is, existing at the time of the Tribunal's decision, which included a sophisticated criminal justice system and that protection was available to all Fijian citizens including the applicant. On that basis the Tribunal could not be satisfied that the applicant faced a real chance of Convention related persecution upon her return to Fiji. It found that the applicant's fears of persecution were therefore not well founded as is required by the relevant statutory requirements (in particular s.65 and s.36(2) of the Act) which provide that a protection visa must only be granted if the decision maker is satisfied that the person applying for the protection visa relevantly satisfies the requirements as set out in s.36(2) and meets the definition of refugee contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicants did not cause the Tribunal to be satisfied as to the applicable criteria (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

13. Ground 1 in the application for review is that the “proper procedures are not followed in making the decision”, and that the decision was made without evidence or foundation. It also complains of a failure by the Tribunal not to recognise that the applicant had suffered persecution. In looking at all of the circumstances, particularly the specific examples as referred to in ground 1, it was open to the Tribunal to make the findings that it did, and there was clearly foundation for the Tribunal to reach the conclusion that it did.

    
    

    As presented, ground 1 would not succeed.

14. Ground 2 is a complaint that the Tribunal was “unreasonable” in relying on “the Amnesty International Report” and that it was selective, and further that the Amnesty Report was itself ‘one-sided’.  The applicant clearly had the opportunity when the substance of this information was discussed with her at the hearing before the Tribunal to have put whatever information she may have wanted to challenge the Amnesty Report.  The Tribunal clearly raised with her (paragraph 42) the substance of independent information in the Amnesty Report. On what is before me, the Tribunal was entitled to rely on that information in the way that it did.  In any event, it is clear from the Tribunal's decision record that it did accept some aspects of the report that were positive in relation to the applicant. What weight the Tribunal assigns to this information is a matter for the Tribunal. Ground 2 would not succeed.

15. Ground 3 is a general statement, again complaining about independent country information, and would also fail for similar reasons as I have already stated above.

16. Ground 4 is a complaint that the level of harassment suffered did constitute serious harm that fell within the meaning of s.91R of the Act. In relation to this ground, the Tribunal articulated the correct test, as I have already said, required by s.65, s.36(2), and relevantly Article 1A(2) of the Convention as qualified by ss.91R and 91S, and this is set out in the Tribunal's decision record. Again, on what is before me in relation to past harm, it was clearly open to the Tribunal to make the finding that it did on what was before it, and that was that the past harm did not constitute serious harm such that it fell within s.91R. Nor, relevantly, has the applicant been able to put forward in the application, nor did she assert before me, any complaint about the Tribunal's understanding and setting out of the applicant's claims or the relevant elements of persecution. The applicant’s complaint (in one sense understandable) appears to be that her subjective fears were sufficient to warrant the Tribunal finding that the harm suffered amounted to serious harm.

1. I can see no error amounting to jurisdictional error in the Tribunal’s decision. It looked at the applicant’s claims as put by the applicant, including at the hearing before the Tribunal, and made findings which were open to it on what was before it. The applicant’s stated grounds in the current application would not succeed if they were to go through to a full hearing. Nor can I see any other grounds arising from the material before me.

2. I accept the respondent's submissions in relation to the issue of summary dismissal.  It is clear that this matter has just recently - the same Tribunal decision complained of now involving the same party –been before the Court. This applicant discontinued these proceedings. She has brought no evidence to support the claim that she did not understand that this Notice applied to her. Nor in all the circumstances do I accept the applicant’s assertion that she did not understand what she was doing. I agree with the respondent’s submissions that the current application constitutes an abuse of process. Further, and in any event, the substance of what has been put to the Court as to the grounds for the current application would not succeed if the matter were to be permitted to go through to final hearing. In accepting, as I have already said, the submissions by the respondent, I note the caution that summary dismissal should only be used sparingly, but as I have already said and as I have already put on the record, the application would be unsuccessful if it were to proceed to a substantive hearing.

3. I dismiss the application on that basis pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. In all the circumstances I also think it is appropriate that I should also make an order that pursuant to Rule 13.11 of the Federal Magistrates Court Rules 2001, that the applicant, in relation to the Tribunal decision currently before the Court, not be permitted to commence further proceedings in this Court in relation to this decision without leave of the Court.

4. It is clear on what is before me that the application for review of the Tribunal's decision must be dismissed. But it would be remiss of me not to ask those who advise the Minister in these matters whether they should recommend to the Minister that consideration should be given as to whether this is an appropriate case for the Minister to exercise her discretion, pursuant to s.417 of the Act, and consider permitting the applicant to remain permanently in Australia. I ask that the Minister will not see my comments as presumptuous or in any way inappropriate, but during the hearing today the applicant raised, particularly by letter handed up to the Court (a copy provided to Ms. Alex), a number of matters that could give rise to compassionate and sympathetic consideration of the applicant’s situation. Issues of domestic violence and the fears of a wife and mother may in some circumstances be better dealt with in Australia, particularly where a fresh start away from negative influences may assist in dealing with what appears to be the applicant’s real fear of harm arising from domestic issues. Notwithstanding that I did not accept the applicant’s assertion that she did not understand the full application of the Notice of Discontinuance, the applicant did in my view display genuine distress in relation to the matters raised in the letter. Clearly, there is nothing in the applicant’s letter to the Court that goes to the issue of showing jurisdictional error in the Tribunal’s decision, but with respect, those who advise the Minister may find something to recommend to the Minister, in view of her power pursuant to s.417 of the Act, by considering the applicant’s letter.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  13 October 2005