SZFMQ v MIMIA and S1140 of 2003 v MIMIA
[2006] FMCA 207
•2 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMQ v MIMIA and S1140 of 2003 v MIMIA | [2006] FMCA 207 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant Applicants a protection visa – Applicants are citizen of Latvia. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – issue estoppel – res judicata. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrates Court Rules 2001 r.13.10(c)
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALR 722
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
SZBXA v Minister for Immigration [2004] FMCA 96
Boguslavskis v Minister for Immigration & Multicultural Affairs [1999] FCA 596
SZDZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 868
SZELM & Anor v Minister for Immigration [2005] FMCA 1179
SZELM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1747
SZBFQ v Minister for Immigration and Anor [2005] FMCA 197
| Applicant: | SZFMQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 128 of 2005 |
| Applicant: | APPLICANT S1140 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 127 of 2005 |
| Delivered on: | 2 February 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicants: | In Person |
| Solicitor for the Respondent: | Ms Griffin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
SYG 128 of 2005
The Notice of Motion is upheld.
The Application is summarily dismissed.
No further application for review of the decision of the Refugee Review Tribunal dated 8 July 1998 is to be accepted for filing without leave of the Court.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $2,750.00.
I allow twelve (12) months to pay.
SYG 127 of 2005
The Notice of Motion is upheld.
The Application is summarily dismissed.
No further application for review of the decision of the Refugee Review Tribunal dated 8 July 1998 is to be accepted for filing without leave of the Court.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $2,750.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 128 of 2005
| SZFMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
SYG 127 of 2005
| APPLICANT S1140/2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
There are two applications before the Court today. In the matter of the SZFMQ, the Applicant is the husband, and Applicant S1140 of 2003 is the wife. They have each commenced proceedings seeking review of a decision of the Refugee Review Tribunal that was handed down on 8th July 1998.
The matters for determination before this Court today relate to Notices of Motion brought by the Minister for Immigration, Multicultural & Indigenous Affairs for summary dismissal of these applications.
The basis for the Notice of Motion in each case is that:
a)the Applicants are estopped from bringing the proceedings,
b)or in the alternative, the proceedings amount to an abuse of the Court's process for the purpose of Rule 13.10(c) of the Federal Magistrates Court Rules.
The Minister seeks an order that no further application by the Applicants to review the decision of the Refugee Review Tribunal handed down on 8th July 1998 be accepted for filing by the registry except by leave of the Court.
Background
The Applicants are citizens of Latvia. They arrived in Australia in 1997 and sought protection visas. The basis of their application relates to the fact that they are ethnic Russians and have complained on systematic discrimination against them by native born Latvians. This is a problem that is not unknown amongst Russian minorities in the Baltic States.
The Applicant Husband claims that he has suffered insults and abuse and that both he and his wife were physically assaulted. There are descriptions of assaults on the wife in particular which are most disturbing. There are two incidents, the facts of which I need not dwell upon, but they certainly indicate to assaults which were unfortunate to say the least.
Notice of Motion for Summary Dismissal
The basis of the Notices of Motion brought by the Minister today seeking an order for estoppel or summary dismissal on the grounds of abuse of process is that the Applicants have already sought review of the decisions of the Refugee Review Tribunal and that those decisions have already been heard and the applications have been dismissed.
In each case Matthews J in the Federal Court heard the applications for review on 12th May 1999 and dismissed the applications. The decisions of her Honour are Boguslavskis v Minister for Immigration and Multicultural Affairs [1999] FCA 596 and Barskaia v Minister for Immigration and Multicultural Affairs [1999] FCA 606.
As the Applicants are now entitled to the protection against disclosure of their identities provided by s.91X of the Migration Act, I propose to direct that in the transcript of my reasons the decisions of the Federal Court will refer to the Applicants fide pseudonyms by which they are known in this proceedings. It would be of little value to the Applicants if the protection to which they are entitled under s.91X could be brought to nothing by a description of earlier decisions that applied to their same application before s.91X came into effect.
The Applicants did not appeal against the decision of Matthews J in the Federal Court, instead they became party to proceedings in the High Court of Australia being a well known class action commenced by one Muin as a representative of a number of plaintiffs. Under orders made by Gaudron J on 25th November 2002 in the Muin proceedings, a draft order nisi was filed on behalf of the Applicants in the High Court and on 25th November 2002 by order of Gaudron J, the applications were emitted to the Federal Court of Australia. On 20th February 2004, Emmett J refused the Applicant's application for an order nisi and a copy of that judgment is annexed to the affidavit of Brooke Marie Griffin dated 12th January 2006.
The applicants commenced these proceedings on 17th January 2005 and the applications were listed for hearing on a final basis on 24th August 2006. What has now happened is that the Minister has brought the proceedings to the Court at this stage seeking summary dismissal. The Applicant SZFMQ spoke on behalf of himself and his wife. He said that he had not been given a great deal of time to peruse the Minister's solicitor's Submissions so I took the step of standing his application down, as the proceedings had been listed separately, so that the Russian interpreter could go through the Outline of Submissions with both Applicants and I have taken the decision to hear the applications together at the time allocated for the later of the two. The circumstances are similar, and in my view it is appropriate to deal with the matters together.
Applicants’ Submissions
The Applicants have filed in Court a Written Submission in response to the Notice of Motion. They are not legally represented, although they have had some assistance from some other person. In their submission they set out definitions of the terms of vexatious litigant and abuse of process. I do not propose to deal with the definition of vexatious litigant as it is not alleged on behalf of the Minister that the Applicants are vexatious litigants and I am not satisfied that the Court should of its own motion make such a finding.
A proceeding can be vexatious if, irrespective of the motives of the litigant, it is so obviously so untenable or manifested groundless as to be utterly hopeless. Repeat applications may involve frivolous or vexatious claims. Frivolous actions are those which appear to have no substance or merit and are a waste of the Court's resources. Vexatious actions are those which lack merit and which may affect the opposing party in a way that causes unnecessary distress and anxiety. There is a reference in the Applicants’ submissions to s.118 of the Family Law Act which with respect does not assist greatly as these proceedings are being heard under the Migration Act. It is open to the Court in the Court rules to find that a person has instituted a vexatious proceeding under the provisions of Rule13.11. I do not propose to apply the purposes of that rule.
The Applicants submit that the current proceedings are not an abuse of process for three reasons. The first reason they give is:
Even though our applications for an order of review were dismissed by the Federal Court, the High Court found that the Refugee Review Tribunal erred in law and remitted our matter to the Federal Court of Australia.
The Applicants submit correctly that their applications for an order of review were dismissed by the Federal Court. The High Court did in the Muin & Lie class action make a finding of an error by the Refugee Review Tribunal but did not do so in respect of the Applicants case. The Applicants were given the right to file an application for an order nisi in the High Court and that application was remitted to the Federal Court. The Federal Court subsequently dismissed the applications for a procedural reason.
The second ground says:
It appears that the Federal Court did not examine the Refugee Review Tribunal, but to assess our eligibility to receive certain documents from the Minister for Immigration. The Court "was not persuaded that it should at that stage compel the Minister to furnish the documents sought".
If that statement is intended to refer to the decisions of Matthews J in 1999, it is incorrect. Her Honour did examine the decisions of the Refugee Review Tribunal in detail and dismissed the application for review. If the statement is meant to refer to the judgment of Emmett J in the later proceedings, it should be said that his Honour dismissed those applications for procedural reasons without making a final determination.
The third ground says:
In fact, after the High Court remitted our case to the Federal Court of Australia we had no opportunity to present our arguments in relation to the Refugee Review Tribunal decision, which according to the High Court was infected by a jurisdictional error.
That ground is misconceived. As I said, the High Court did not find that decisions relating to these two Applicants were infected by jurisdictional error. The Applicants had already presented their arguments to the Federal Court in relation to the Refugee Review Tribunal decision, those arguments were considered and rejected.
It is noteworthy that the Applicants did not appeal against the Federal Court decisions in 1999, instead they joined the Muin class action which was not an appeal against the earlier decisions. It was a fresh application to the High Court in that Court's region in jurisdiction. It would appear to me in passing that in respect of these Applicants, their becoming members of that class action was in itself an abuse of process because their matters had already been decided.
The Applicants have referred the Court to some decisions of the Federal Magistrates Court which they submit should be considered in respect of abuse of process matters. They did not submit copies of those decisions, and may not have had them to submit, and the solicitor for the Minister has commented that she has not had the opportunity to check these decisions herself, but I have obtained copies of those decisions from the Court's database where they are on the database. The short answer is that in respect of the four cases mentioned they can all be distinguished on the facts.
In respect of the decision of SZDZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 868 there is no assistance that can be gained from that, in that on 24th June 2005 Allsop J granted leave to appeal from the orders of the Federal Magistrate made on 11th February 2005. The applicants in the original application were the applicants I note in the application for leave to appeal. Clearly that matter can be distinguished.
In the matter of SZELM & Anor v Minister for Immigration [2005] FMCA 1179, which was a decision of Smith FM. In that case a Notice of Motion and for Summary Dismissal was listed concurrently before his Honour for hearing on the substantive application. His Honour dismissed the substantive application and on 15th November 2005. In SZELM v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1747, Madgwick J dismissed the applicants appeal against Smith FMs decision.
The Applicants refer to SZGDD, SZGDE, SZGDF v Minister for Immigration & Multicultural & Indigenous Affairs. That does not appear on the Court's database because on 18th October 2005 the Respondent Minister consented to the matter be remitted to the Refugee Review Tribunal for rehearing. There is no indication as to the basis upon which the Respondent entered that consent, although I would assume it relates to the facts of the particular matter. The Respondent's solicitor may well be able to find out as I note that the Australian Government Solicitor acted on that occasion.
Finally, in SZBFQ v Minister for Immigration and Anor [2005] FMCA 197, the applicants submit that the applicants in that matter filed another application and Driver FM referred the matter back to the Refugee Review Tribunal for further consideration. True it is that on 10th June 2005, Driver FM granted writs of certiorari and mandamus referring the proceedings to the Refugee Review Tribunal. There is nothing in his Honour's reasons for judgment to indicate that there had been any previous application for judicial review that had been dealt with. Accordingly, all of those cases can be distinguished.
Conclusion
Turning to the matter before me, it is clear that the Applicants are seeking to re-litigate an application for judicial review of the decisions of the Refugee Review Tribunal handed down on 8th July 1998. In my view they are estopped from doing so their applications for judicial review have already been heard and dealt with by the Federal Court in 1999. There is no new issue that has been raised and no special circumstances given as to why any new issue which could have been raised was not raised at the time of the original applications. I note that on the original applications, the Applicants were represented by the Legal Aid Commission of New South Wales who briefed counsel to appear for them and there is nothing on the face of the decision to indicate that the Applicants were not properly represented.
It must follow that the Applicants are estopped from proceeding with this application because the principle of res judicata applies. It must follow that the repeated bringing of applications to review a decision which has already been reviewed constitutes an abuse of process and I propose to make orders for Summary Dismissal of the application. It would also seem to me to be appropriate in the exercise of the Court's jurisdiction to direct that no further application for review of the decision of the Refugee Review Tribunal dated 8th July 1998 nominally accepted for filing without leave of the Court.
Having said all this, and I note that this is an interlocutory decision and the Applicants still have the right to seek leave of the Full Court of the Federal Court to appeal against my decision but they will need to act promptly if they wish to do so, it does seem to me that the Applicants should give some consideration to an application to the Minister to exercise her discretion under s.417 of the Migration Act. It has, to my understanding, always been the case that the Applicants have had a strong subjective fear of persecution should they return to Latvia.
The factual situation described by the Applicants to the Tribunal contains, to my mind, some serious matters which would give rise to a subjective fear of persecution. The assaults on Applicant S1140 of 2003, the wife, who is now of course the mother of two young children, would certainly give rise to a subjective fear of persecution.
The Court does not have the power to review factual findings of the Tribunal as these proceedings constitute judicial review and not merits review. The Court cannot substitute its own view of the facts for those taken by the administrative decision-maker provided there were grounds that the Tribunal, in other words the decision-maker, could have come to that conclusion.
In my view, the evidence was there to allow the Tribunal to come to the factual conclusions that it did, even though another observer may on that same evidence have formed a different view, but that is not a matter for the Court. It does seem to me to be a strong case where the Applicants should give consideration to an application for the Minister to exercise her discretion under s.417 of the Migration Act. They should however obtain advice on that subject and they should be careful not to make a decision to follow that course until they have decided that no further pursuit of proceedings in the Court would be warranted.
It follows that the substantive applications must be dismissed. In each case there is an application for costs in the sum of $3,300.00. The Applicants are not working and they have to support their two young children, aged five and three. I have had the pleasure of seeing the children, who appear to me to be happy, healthy and well looked after children who are a credit to their parents. They have been extremely well behaved, I would say, in what must have been difficult circumstances for them today.
The fact that the Applicants do not have the money to meet an order for costs is not of itself a ground for not making an order for costs in favour of the successful party. I will take into account the fact that I have heard the applications together, but I also take into account that a significant amount of money has been expended by way of disbursements on photocopying material. In my view, bearing in mind the fact that time and money has been saved by hearing the applications together; I propose to allow the First Respondent's costs in the sum of $2,750.00 in each case.
Taking into account the Applicants' financial and family situation and bearing in mind the recommendations that I have made in this decision, I propose to exercise my discretion to allow 12 months to pay those costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 14 February 2006
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