SZFMD v Minister for Immigration - [2008] FMCA 1109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1109

MIGRATION – Whether application is an abuse of process – whether the applicant should be declared a vexatious litigant pursuant to r.13.11(3)(b) of the Federal Magistrates Court Rules 2001.

Migration Act 1958 (Cth), ss.424A; 425; 474; div. 4
Federal Magistrates Court Rules 2001, r.10; 13.11(3)(b)

SZGGS v Minister for Immigration & Anor [2008] FCA 973;
Walton v Gardiner (1993) 177 CLR 378

Applicant:

SZFMD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1683 of 2008

Judgment of:

Emmett FM

Hearing date:

1 August 2008

Date of Last Submission:

1 August 2008

Delivered at:

Sydney

Delivered on:

1 August 2008

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondents:

Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1683 of 2008

SZFMD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

The first respondent seeks an order pursuant to Rule 10 of the Federal Magistrates Court Rules 2001 that the proceeding commenced by way of application filed on 2 July 2008 be dismissed on the ground that the proceeding is, inter alia, an abuse of the Court’s process, by reason of the fact that the grounds raised in the application have been the subject of prior judicial determination.
In support of the application the first respondent read the affidavit of Richard John Baird, sworn 24 July 2008. Mr Baird’s affidavit recounted the litigation history between the parties in respect of an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2007.
On 26 April 2007, the applicant filed an application in this Court seeking judicial review of that decision.
On 20 August 2007, Turner FM dismissed the application on the basis that the decision of the Tribunal was not affected by jurisdictional error and that the decision was therefore a privative clause decision pursuant to s.474 of the Migration Act 1958 (Cth) (“the Act”). In his Reasons, Turner FM distilled the applicant’s grounds as: a challenge of the reliance of the Tribunal on inconsistencies in evidence given by the applicant; breach of s.424A; bias; and, a denial of natural justice.
Turner FM found that none of the grounds were made out. In particular, no breach of s.424A had been established and that s.425 of the Act had been complied with. His Honour also found that the procedural requirements of the Act had been complied with by the Tribunal, and that the applicant had not been denied natural justice.
On 22 February 2008, Cowdroy J dismissed an appeal from the decision of Turner FM and found that the Tribunal complied with all statutory procedural requirements contained in Division 4 of the Act.
On 12 June 2008, Hayne and Crennan JJ of the High Court of Australia refused special leave to appeal from the decision of Cowdroy J.
The applicant then filed the present application in this Court on 2 July 2008. The grounds of the application are as follows:
“The applicant claims that he was denied procedural fairness at the time of the assessment of his claim The Tribunal had breached s 424A and/or s 425 of the Migration Act by failing to invite the appellant to give evidence and to make submissions relating to the contradictions in his claims at the hearing. In SZBEL, the High Court cited with approval the Full court decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. It Said:
32 In Alphaone the Full Court rightly said:
“It is a fundamental principal that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” [emphasis added by the High Court]
In the present case the duties requiring the tribunal to afford the applicant the opportunity to address the credibility issue with regard to his claims. The applicant was not given a fair opportunity to deal with the matter, and consider that applicant was denied procedural fairness.
CONDUCT OF HEARINGS
1. This Direction provides guidance to Members of the Tribunals about the provision of information to applicants during hearings of the Tribunals.
Requirement to act in a way that is fair and just
2. In reviewing a decision a Member is required to act according to substantial justice and the merits of the case (s353(2)(b)/420(2)(b)). The Act also requires that, in applying the procedures set out in the Act for the conduct of a review, Members must act in a way that is fair and just (s357A(3)/422B(3)). These latter provisions impose an additional obligation on Members to act in a way that is fair and just in conducting a review and should be considered when deciding what course to take in respect of the steps prescribed by Division 5 of Part 5 or Division 4 of Part 7.
Putting adverse information to an applicant
3. Information which would be the reason or part of the reason for affirming the decision under review must be put to the applicant:
· in writing, unless it falls within the exception in s359A(4)/424A(3); or
· orally at the hearing.
4. If you decide to put the information orally to the applicant, you must follow the procedure in s359AA/424AA, whether or not the information is information that would otherwise be covered by s359A(4)/424A(3). For example, if in an RRT matter you choose to put to the applicant, at the hearing, general country information and this information would be the reasons or part of the reason for affirming the decision under review, all the obligations in s424AA (b) will apply.
5. If you decide to put the information orally to the applicant, you need to explain the information sufficiently well for the applicant to understand it and you need to explain the consequences of the information for the applicant’s case.
6. You must also orally invite the applicant to comment on or respond to the information and advise the applicant that he or she may seek additional time to comment or respond.”
At the heart of the applicant’s complaints are contentions that the applicant was denied procedural fairness and that the Tribunal had breached ss.424A and 425. It is plain that those issues have been agitated between the parties in prior judicial proceedings and determined. The determination in respect of those issues made by Turner FM has been found to be without error both in the Federal Court on appeal and in the refusal by the High Court of Australia to grant special leave to appeal from that decision.
The applicant provided a document to the Court this morning entitled “Applicant Written Submissions”. The written submissions identify, as grounds of review, a denial of natural justice and a lack of procedural fairness. They raise no new issue not already decided by the courts, or otherwise determined between these parties.
As Rares J said in SZGGS v Minister for Immigration & Anor [2008] FCA 973 at [16] and [20]:
“16. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at a trial. If it were not so, the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Their Honours went on to point out, applying University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, that it is elementary that a party is bound by the conduct of his case. They said:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
…
20. In SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 (at [37]–[38] and [55]–[58] per French J; with whom Tracey J agreed at [114]; and [83]–[88] per Allsop J) the Full Court applied the principles in which the court may protect itself against abuse of its processes. As French J pointed out (SZAJB [2008] FCAFC 75 at [37]):
One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings … The powers of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing.””
The applicant has exhausted his appeal rights in respect of seeking judicial review of the decision of the Tribunal. In the circumstances, for the applicant to be allowed to continue with this proceeding would bring this Court into disrepute among right-thinking people (Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Dean and Dawson JJ). In the circumstances, the application before this Court is an abuse of the process of the Court.
Accordingly, the proceeding commenced by way of application filed on 2 July 2008 is dismissed with costs.
The first respondent seeks a further order pursuant to Rule 13.11(3)(b) of the Federal Magistrates Court Rules 2001 that the applicant be declared a vexatious litigant and be prevented from instituting any proceeding. Rule 13.11(3)(b) is as follows:
“(3) If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
…
(b) that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.”
In order to make a declaration that a person is a vexatious litigant, the Court must be satisfied that that person has instituted a vexatious proceeding, and be satisfied that the person has “habitually and persistently and without reasonable grounds”, instituted other vexatious proceedings in the Court, or any other Australian Court. In my view, a court should not make such an order without evidence and submissions in support. Other than this proceeding, there is no evidence before the Court that the Applicant has “habitually and persistently and without reasonable grounds” instituted other vexatious proceedings in the Court, or any other Australian Court. Nor did the first respondent make any submissions in support, either orally or in writing.
Accordingly, the first respondent's application that the Court make an order pursuant to Rule 13.11(3)(b) is refused.
ORDERS DELIVERED

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

Deputy Associate: E. Maconachie

Date: 11 August 2008