SZGEG v Refugee Review Tribunal
[2005] FMCA 1904
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGEG v REFUGEE REVIEW TRIBUNAL & ANOR | [2005] FMCA 1904 |
| MIGRATION – RRT – notice of motion seeking summary dismissal – notice to applicant of hearing – failure of applicant to appear – matter previously decided by the Federal Court of Australia – the principle of res judicata – court of similar jurisdiction – abuse of the court processes – application summarily dismissed with costs. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| Ord. v. Ord (1923) 2 KB 432 Edwards v Edwards [1967] All ER 1032 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Lawrence v Norreys (1888) 39 Ch D 213 |
| Applicant: | SZGEG |
| Respondents: | REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | LNG 25 of 2005 |
| Judgment of: | Roberts FM |
| Hearing date: | 30 September 2005 |
| Date of Last Submission: | 30 September 2005 |
| Delivered at: | Hobart |
| Delivered on: | 30 September 2005 |
REPRESENTATION
| The Applicant was not represented: |
| Counsel for the Second Respondent: | Mr. Wilson |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
That the Application filed in this court on 27 April 2005 is dismissed;
That the Applicant pay the costs of the Second Respondent of and incidental to the dismissed Application fixed in the sum of three thousand nine hundred and ten dollars ($3,910.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNG 25 of 2005
| SZGEG |
Applicant
And
| REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondents
REASONS FOR JUDGMENT
This matter came before me on 1 September 2005 as a result of a notice of motion on behalf of the Second Respondent to have the matter summarily dismissed. At that time the Applicant did not appear. An interpreter had been arranged for the hearing and it appeared that there was a possibility that he may not have known about the hearing because the correspondence to him about it had been sent to his residential address rather than the postal address that he had given. In order to rectify that, I adjourned the matter to today and notice was sent to his postal address.
It appears that, out of an abundance of caution, an employee of the Registry contacted him by telephone yesterday to be sure that he knew about the hearing. I am told he did know about the hearing and that he indicated he wanted to appear by telephone. He had made no application to appear by telephone but I would have dealt with that if we had been able to get him on the telephone. Four attempts were made to get him on his mobile telephone number, being the only number that he has provided to the court but the telephone was switched off. I had the matter called. He is not here today and I therefore arranged for the interpreter to be discharged yet again.
This matter involves an application by the applicant for a judicial review of a decision by the Refugee Review Tribunal (RRT) affirming a decision of the delegate of the Minister not to grant him a Protection Visa.
Background
On 3 June 1998 the applicant arrived in Australia. He applied for a Protection Visa on 14 July 1998. On 28 July that year, the delegate of the Minister refused that application.
On 26 August of the same year the applicant sought a review if that delegate’s decision by the Refugee Review Tribunal (RRT).
At a hearing on 16 October 2000 before the RRT the applicant refused to have the interpreter that had been provided.
On 24 October 2000, the RRT affirmed the delegate’s decision (“the first RRT decision”).
On 1 December 2000, the applicant made an application to the Federal Court of Australia for a review of the first RRT decision.
On 26 April 2001 Lindgren J gave a decision – and I must say that it is a well thought out and detailed decision - in which he concluded that none of the grounds for review had been made out. Consequently, the application was dismissed. An order for costs was also made against the applicant.
There is no evidence before me that the applicant ever sought to appeal that decision of Lindgren J. I therefore conclude that he did not appeal. Instead, however, the applicant made a further application to the Department for a Protection Visa on 3 July 2001. When lodging that application, his migration agent cited Federal court authority for the proposition that the RRT did not have jurisdiction to review the Minister’s delegates first decision and that the applicant therefore had “an absolute right to lodge a fresh application”
On 22 April 2002, the delegate of the Minister refused that second application for a Protection Visa.
The applicant then applied to the RRT on 6 July 2002 for a review. The RRT affirmed the delegate’s decision in a decision handed down on 25 March 2003 (“the second RRT decision”).
On 14 April 2003 the applicant applied to the Federal Court of Australia for a judicial review of the second RRT decision. On 20 June 2003 that application was heard and dismissed.
The applicant then appealed to the Full Court of the Federal Court of Australia and on the 11th February 2004 of the Full Court dismissed that appeal.
The applicant lodged an application with the High Court for special leave to appeal. On 10 March 2005, the High Court dismissed that application with costs.
On 27 April 2005, the applicant applied to this Court in Hobart for a review of the first RRT decision.
On 3 June 2005 the solicitors for the Second respondent filed a Notice of Motion seeking that the application be dismissed on the basis that it is an abuse of process and/or frivolous and vexatious and/or no reasonable basis for the application is disclosed. It is that Notice of Motion that came before the Court today.
Discussion
There is some dispute about what the applicant may or may not have said to the Registrar at the directions hearing of this matter on 19 May 2005. In my view, it does not matter what was or was not said at that time, because it is not material to my decision.
The issue of the interpreter made available at the first RRT hearing appears to be central to the current application by the applicant. However, there is no doubt that Lindgren J dealt with that issue in his decision. In this regard, I refer to in particular to paragraphs 18 to 23 of his decision.
18. I turn now to the question of the interpreter. In his application to the RRT (the applicant) had said only that he needed an interpreter in the Bengali language. On 28 June 2000 (the applicant) responded in writing to an invitation by the RRT to attend a hearing, indicating that he would need a Bengali interpreter and adding "STRICTLY NO BANGLADESHI MUSLIM INTERPRETER!!".
19. (The applicant) was advised that his application was fixed for hearing before the RRT on Tuesday, 15 August 2000. Apparently the RRT had not been able to obtain at that time a Bengali interpreter who was not a Muslim and so it wrote to (the applicant) advising that the forthcoming hearing would not be able to take place (the letter did not give the reason) and that a new date would be appointed.
20. In due course, again an invitation to a hearing was issued by the RRT to (the applicant) and on 27 September 2000 (the applicant) again responded in writing, indicating that he would need a Bengali interpreter. On the form he stated:
"Pls provide us a non-Muslim or non-religious interpreter."
21. At the hearing on 16 October 2000 an interpreter was present, namely, (Mr AMB). According to the reasons for decision of the RRT, it had not been possible for the RRT to meet the requirement of a non-Muslim interpreter. I will set out what happened according to the reasons for decision of the RRT:
"The applicant stated that he wished to speak to the Tribunal without the interpreter being present, this was agreed to. The discussion was in English. The applicant said that he could not proceed with the interpreter. He was asked to explain why and said that it was because he was Muslim. He was asked by the Tribunal how he could know this and said that he had asked the interpreter his name and his religion. He was asked by the Tribunal whether he had ever met the interpreter before, he had not. He was advised by the Tribunal that the interpreter was there as a professional and that he was required to take an oath to keep confidentiality and interpret correctly. He was asked to explain why he thought that the interpreter would not do his job. He said that he could not proceed with a Muslim interpreter as the problems he had in his country related to Muslims. He also said that his adviser was overseas and he wanted him present. He was advised that there would not be an adjournment, that the Tribunal had already adjourned the matter once in an effort to meet his requirement, but this was not able to be met. The matter would not be adjourned again. The Tribunal asked the applicant what language he spoke at work, he said Bengali. He was asked where he worked and said `in a Japanese restaurant'. The Tribunal commented that it was difficult to understand that he would speak Bengali in a Japanese restaurant. He then said that he spoke English at the restaurant. He was asked about his education and said that he had studied English at college. The Tribunal advised that he would be prepared to conduct the hearing in English. The applicant refused saying that his English was not good enough. The Tribunal advised the applicant that a five minute adjournment would be taken for him to consider his options. After the adjournment the applicant advised that he would not give evidence with the interpreter, and would not given [sic] evidence in English. He requested that no decision be made until his adviser returned from overseas. He was advised that the decision would not be delayed for this reason. The hearing concluded."
22. In its reasons for decision, the RRT noted the provisions of sections 420 and 425 and subsection 427(7) of the Act, and then stated:
"I have carefully considered this matter, the requests of the applicant for a specific interpreter and his reasons for refusing to proceed. I do not accept that his reasons for refusing to proceed to give oral evidence are reasonable. There was no complaint about the interpreter himself, the applicant does not know him, nor anything about him, there is no allegation that the interpreter would have behaved other than in a professional manner. It is known to the Tribunal that he is an accredited NAATI recognised interpreter in Bengali of the current highest level available. The applicant's concern is that he is apparently Muslim, this being ascertained by the applicant who asked the interpreter his name and religion. Whilst I can understand that hearing situations are unusual for many people and make them nervous, and that a Tribunal should do their best to make a person as comfortable as possible, this cannot result in an applicant seeking to dictate how a hearing is to operate, and refusing to comply with reasonable requests. In the current circumstances I do not accept that the applicant has behaved reasonably. As discussed with him it is his choice to give evidence or not and he has chosen not to. I have proceeded therefore to determine the matter on the information available to the Tribunal."
23. It is now acknowledged that (Mr AMB) was not an "accredited NAATI recognised interpreter in Bengali" at the time of the hearing. There is, however, affidavit evidence read before me today without objection that he was well qualified to interpret.
As I have already mentioned, Lindgren J concluded that the applicant had not made out a ground of review, and dismissed the application.
It is to be noted that the applicant did not appeal that decision of more than four years ago, nor has he sought any extension of time to appeal the decision.
In support of the Notice of Motion filed 3 June 2005, the legal representative for the second respondent raises a number of objections on legal grounds to this application. One of those is the principle of res judicata.
In Ord. v. Ord (1923) 2 KB 432 at page 439 Lush J said:
Now, there is no difficulty in seeing what, in its strict and proper sense, the plea of res judicata means. The words “res judicata” explain themselves. If the res - the thing actually and directly in dispute - has been already adjudicated upon, of course by a competent Court, it cannot be litigated again.
In Edwards v Edwards [1967] All ER 1032, Sir Jocelyn Simon P said:
……it is desirable that disputes within society should be brought to an end as soon as is reasonably practical and should not be allowed to drag festeringly on for an indefinite period. That last principle finds expression in a maxim which English law took over from the Roman law: it is in the public interest that there should be some end to litigation. The principle, for example, applies in the doctrine which is known to lawyers as res judicata; in other words, once there is a decision on matter by a competent court, it is binding on all courts of similar jurisdiction.
I point out that this Court has jurisdiction in migration matters and, like the Federal Court, is a court set up under Chapter III of the Australian Constitution. Consequently, there is no doubt that this Court is “a court of similar jurisdiction”.
In his submissions in relation to the application of the doctrine of res judicata to this matter, the Minister’s legal representative says:
·Lindgren J’s order was a final order that resolved a dispute between the applicant an the respondent;
·The parties to this action are effectively the same;
·The cause of action that was dismissed was, in substance, the same as that which the applicant now seeks to raise in this action. Both of his applications, seek a judicial review, as permitted by the Migration Act of the same RRT decision and raising the same issues, viz: whether there was any judicially reviewable error in proceeding without an interpreter and whether there was any bias on the part of the RRT;
·Both proceedings depend upon the same facts, being that a decision was made by the RRT on 24 October 2000 affirming the decision of a delegate of the second respondent to refuse to grant the applicant a Protection Visa, that decision being made for reasons handed down on 14 November 2000; and
·As a result, the dismissal of the first proceeding prevents the further application for judicial review in the current proceeding, and the current proceeding should be dismissed.
In my view, that argument is unassailable.
It is quite clear that this matter has already been decided in a properly constituted court. That being so, the applicant cannot be allowed to start at the bottom again, in order to run the matter up through the system in the hope that he may eventually obtain a decision that is in his favour. To do that would clearly be an abuse of the court processes.
In relation to the question of abuse of court processes, another matter raised in relation to the Notice of Motion is the relevance of Rule 13.10 of the Federal Magistrates Court Rules 2001 to the application filed 28th April 2005. That Rule reads as follows:
13.10 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
It is clear that this rule should only be relied upon to dismiss applications summarily in exceptional cases. See Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 and Lawrence v Norreys (1888) 39 Ch D 213.
In the last of those cases mentioned Lord Herschell said:
It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases.
I have no hesitation at all in coming to the view that the application filed on 28th April 2005 in this Court is an abuse of process. I coming to that view, I note the following:
·The applicant has already had a decision from the Federal Court in relation to this same matter, which he did not appeal.
·When making his second Protection Visa application, the applicant stated through his Migration Agent that the RRT did not have jurisdiction to review the Minister’s delegates first decision and that the applicant therefore had “an absolute right to lodge a fresh application”
·He sought the review of that second unsuccessful application through the RRT, the Federal Court, The Full Court of the Federal Court and the High Court – all without success.
·The applicant is a resident of NSW but he has not adequately explained why he sought to file his application in Hobart.
·Nowhere, in his affidavit filed with his application does the applicant mention the application to the Federal Court in relation to the first RRT decision or his second unsuccessful application for a Protection Visa and the subsequent applications or appeals to the RRT, the Federal Court, the Full Court of the Federal Court or the High Court; and
·Nowhere, in his “outline of submissions” does he mention them either.
It is quite clear to me that the applicant has not made full and frank disclosure of all relevant matters to the Court, and that is, in itself, an abuse of the court process.
Conclusions
In view of these matters it is quite clear that this is one of those cases where the provisions Rule 13.10 of the Federal Magistrates Court Rules should be applied and the application filed 27th April 2005 must be dismissed.
It is equally clear to me that, by filing that application, the applicant has caused significant and unnecessary costs, particularly to the second respondent. Consequently, there should be an order that he pay those costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Roberts FM
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