SZJOT v Minister for Immigration
[2008] FMCA 1617
•25 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1617 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – Tribunal decision the subject of prior judicial review – summary dismissal. |
| Migration Act 1958 (Cth), ss.48B, 417, 424A |
| Attorney-General for Victoria v Wentworth (1988) 14 NSWLR 481 Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720 Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 SZJOT v Minister for Immigration & Anor [2007] FMCA 1705 Walton v Gardiner (1993) 177 CLR 378 |
| Applicants | SZJOT, SZMLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2656 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2008 |
REPRESENTATION
| Applicants: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application of 15 October 2008 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.
That the applicants pay the costs of the first respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2656 of 2008
| SZJOT, SZMLE |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of a notice of motion filed by the first respondent on 5 November 2008 seeking that the application filed by the applicants in this Court on October 2008 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that the applicants have no reasonable prospect of successfully prosecuting the proceeding, or that the claim for relief is frivolous or vexatious or an abuse of process of the Court. In submissions the first respondent also contended that the applicants were estopped from bringing the proceedings on the basis of res judicata and issue estoppel, that the doctrine of Anshun estoppel applied and that there were no special circumstances to justify its non-application.
The application of 15 October 2008 and an amended application filed in this Court on 20 November 2008 by the applicants seek review of a decision of the Refugee Review Tribunal signed on 10 October 2006, affirming a decision of a delegate of the first respondent not to grant the applicants protection visas on the basis of claims presented essentially by the first applicant, who for convenience is referred to hereafter as the applicant. That decision of the Tribunal has been considered by this Court, the Federal Court and the High Court.
The first applicant sought review of the Tribunal decision in question in this Court on 26 October 2006. On 10 October 2007 Emmett FM dismissed the application (see SZJOT v Minister for Immigration & Anor [2007] FMCA 1705). Her Honour considered in detail the grounds raised by the applicant and found that the Tribunal decision was not affected by jurisdictional error. On 29 February 2008 an appeal was dismissed by Lindgren J (see SZJOT v Minister for Immigration & Citizenship [2008] FCA 258). His Honour considered the grounds raised by the applicant but found no jurisdictional error had been demonstrated, nor any error on the part of the Federal Magistrates Court. An application to the High Court for special leave to appeal against the orders of Lindgren J was dismissed on 12 June 2008 on the basis that the applicant had not identified any arguable error in the decision of his Honour (see SZJOT v Minister for Immigration and Citizenship & Anor [2008] HCASL 344).
Both applicants were party to proceedings commenced in this Court on 24 June 2008 again seeking review of the same Tribunal decision. They filed an amended application on 10 July 2008. On 31 July 2008 Raphael FM dismissed the application on a summary basis under Rule 13.10 of the Federal Magistrates Court Rules (see SZJOT & Anor v Minister for Immigration & Anor [2008] FMCA 1122).
The applicants sought leave to appeal to the Federal Court. That application was dismissed by Reeves J on 19 September 2008 (see SZJOT v Minister for Immigration and Citizenship [2008] FCA 1438). His Honour found that the applicants had failed to demonstrate any error in the Federal Magistrate's conclusion that the proceedings were an abuse of process and indicated that it was clear that the applicant was attempting to engage in a second round of review of the same Tribunal decision, that she had already been unsuccessful in Federal Magistrates Court, the Federal Court and in the special leave application to the High Court and that on any view this was a clear abuse of the processes of this Court and the Federal Court (at [11] – [12]). His Honour also found that the applicant had failed to demonstrate any error in the Federal Magistrate's conclusion that the application for judicial review had no reasonable prospects of success and, relevant to the grounds that are now raised, indicated that there was no error in the conclusion that the Tribunal did not fail to consider the applicant's claim that she had suffered religious persecution given the evidence before the Federal Magistrates Court that she did not make any such claim in her visa application (at [12]). His Honour also found that there was no error in the Court's conclusion that the country information relied on by the Tribunal in its decision fell within s.424A(3)(a) of the Migration Act 1958 (Cth) (at [12]).
Notwithstanding those prior proceedings the applicants commenced these proceedings on 15 October 2008. The grounds in the original application are generally expressed. It was contended that there was a breach of natural justice and procedural fairness and jurisdictional error. As expressed, no grounds are raised which can be said to have a reasonable prospect of success. Moreover those issues were dealt with in the first and second proceedings in this Court.
The amended application, while also raising generally expressed grounds, contains some particulars. It alleges first an unparticularised breach of s.424A. That claim was raised and addressed in the proceedings before Raphael FM and in the application for leave to appeal to the Federal Court. The material before the Court is not such as to establish any reasonable prospect of success on this basis.
The second ground is a generally expressed complaint of jurisdictional error. However in particulars the applicant claims that the Tribunal failed to consider an integer of her claim that she feared persecution by reason of her religious activities in India. In written submissions the applicant wife claimed that she feared “persecution due to [her] religious activities in India including religious conversation (sic) of non Christians.” Both applicants elaborated on these claims in the hearing today. The applicant claimed that the Tribunal failed to deal with the main element of her claims and misunderstood the claim advanced by her in her protection visa application. She claimed that her evidence at the Tribunal hearing that she was fearful of BJP and RSS groups because the work she did was against the work of the BJP and other Hindu groups and the fact that her religion was specified in her protection visa application indicated that her central claim for refugee status was based on religion as well as political opinion.
This issue was also raised in the prior proceedings. The fact that in the protection visa application in answer to the question "Your religion" the first applicant had stated "Christian Latin Catholic" was considered by Raphael FM, who found that a claim based on persecution due to the applicant’s religion had not been made to the Tribunal and that the naming of a religion did not constitute a claim of persecution for religious reasons (at [4]). Reeves J found no error in this reasoning.
There is nothing in the rest of the applicant's protection visa application to indicate a claim was made based on religion as distinct from political opinion. Contrary to her contention, the Tribunal's account of the evidence of the applicant about a fear of BJP and RSS groups does not establish that she made a claim based on religion or that such a claim was raised squarely on the material before the Tribunal such as to require it to be considered (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1). These claims were made in the context of a discussion of the applicant’s claimed political activities.
There is nothing in the Tribunal decision or in the material before the Court, including the affidavit of Louise Bernadette Buchanan affirmed on 4 November 2008 and the protection visa application, to indicate that the applicant put material before the delegate or the Tribunal which raised a claim based on religion.
I have considered the evidence that the applicant provided to the Tribunal, including a letter from her church in India dated 1 July 2006 and letters from her children. The Tribunal referred in its decision to the fact that it had received a document from the applicant's parish priest in Sydney confirming that the applicants were known to the priest and had been attending the church on a weekly basis. Such evidence did not require the Tribunal to consider religion as a Convention basis for a well-founded fear of persecution on return to India. A letter from the applicant’s parish priest in India was also referred to and extracted in the Tribunal decision. That letter referred to the writer’s understanding that the applicants were seeking protection to save their lives, described their attendance at church prayer services, good Christian values and reputation among the working class and stated that it was unfortunate the police suspected their involvement in certain unpleasant incidents which challenged the ethos of the country. The writer stated that he understood that the applicants left India to avoid the bleak situation they were facing because of their “political association”. The Tribunal also referred to letters from the applicant's children warning that “They are coming and asking about you. We are suffering and they will kill you”. This material does not raise claims based on religion as now contended for by the applicants.
The Tribunal found that these letters of support did not go beyond what had already been claimed and did not provide any additional information that could overcome its concerns about the applicant's credibility. No jurisdictional error is apparent in the Tribunal's approach to that material. In particular there is no arguable claim that the Tribunal misunderstood and failed to consider claims that arose on the basis of the material before it based on the applicant's religion.
The Tribunal considered the case presented to it by the applicant, both in her application and also orally at the Tribunal hearing, which was essentially that she was a member and an activist of CPI(ML) or the Peoples War Group or perceived as a Naxalite in India. She claimed to have been arrested, detained and mistreated in the past and to fear further adverse treatment by the authorities, CPI(M), the BJP and Hindu groups in India. The Tribunal found the applicant did not impress it as a credible and truthful witness having regard to significant inconsistencies and other matters which it detailed.
In these proceedings the applicant also claimed in written submissions (and this was elaborated on in oral submissions) that she and her husband had presented their case with the assistance of a person they mistakenly believed to be a registered migration agent. They claimed that while they had explained their case to him in terms of religion, he had indicated to them that they would not succeed on that basis and so had created a political case based on a claim to be a Naxalite although they knew nothing about the Naxalites. They claimed that since they had failed in the Tribunal they had gathered together information which they had not had available at that time and they wished to go back to the Tribunal to present their case on the basis of religion.
I have considered whether the matters which are now raised about the involvement of a third party are such as to give rise to a possible claim of third party fraud, such as was considered by the High Court in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189. This is not, however, a case within the principles considered by the High Court in SZFDE. Even taking what I am told from the bar table at its highest, what the applicants have said today is not such as to indicate fraud on the part of a third party, as distinct from bad advice. That advice did not prevent the applicant from attending a Tribunal hearing at which she had the opportunity to present her claims as she saw fit. I also note that in SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 Branson J indicated that where an applicant “was aware that his conduct rendered him complicit in an attempt to deceive the Tribunal” the principles in SZFDE were not applicable (at [17] – [18]).
More generally, the applicants had the opportunity to make any such claim in the prior judicial review proceedings by exercising reasonable diligence as considered in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602. They have not established any special circumstances that would justify the Court exercising its discretion not to apply Anshun estoppel principles.
The grounds raised by the applicant do not have any reasonable prospect of success in the sense considered in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720, White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 and SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268. The application is in effect an attempt to re-agitate the same issues as were dealt with previously that were unsuccessful. The grounds relied on are not such as to establish a basis on which it can be said that the applicant has a reasonable prospect of successfully prosecuting the proceeding having regard to the nature of those claims and the fact that the decision of the Tribunal has been the subject of judicial review proceedings on five previous occasions.
The applicants now ask the Court to find that there is a jurisdictional error in the same Tribunal decision where none has been found in previous judicial review proceedings and where there is no reason to doubt the correctness of those previous judgments. To the extent that any different argument is now sought to be raised, it is one that should have been put, if it was to be put, in the prior proceedings.
The grounds on which the applicants seek to rely have been considered in those previous proceedings, albeit there was some elaboration today. While it may be that the circumstances are not such as to create a res judicata or issue estoppel in relation to all of the matters that are sought to be raised, there was a final determination of the applicant's claims on the merits in the first judicial review proceedings.
I am also satisfied that the present proceedings constitute an abuse of process in the sense considered in Walton v Gardiner (1993) 177 CLR 378 at 392. As Mason CJ, Deane and Dawson JJ stated at 393:
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. [Citations omitted].
The repeated bringing of similar applications for judicial review in relation to the same Tribunal decision brings the administration of justice into disrepute. There is an underlying public interest in the finality of litigation. These proceedings ought to be summarily dismissed to avoid further public expense in defending a matter which has on five previous occasions occupied the time and resources of this Court, the Federal Court and the High Court.
The applicants contended that it is only now that they have been able to gather together information to support a claim based on religion. A number of documents which post-date the Tribunal decision are attached to the amended application. This does not establish a basis for assertion of jurisdictional error or a basis on which this Court can remit the matter to the Tribunal so that they may present their case in a different way. These matters may be matters that they can raise with the Minister under s.417 or s.48B of the Migration Act. They are not matters that show that the present proceedings should not be summarily dismissed or that are such as to establish a basis on which they could succeed in a final hearing. As I endeavoured to explain to the applicants and as indeed should be apparent to them from the extensive prior judicial review proceedings in which they have been engaged, it is not for the Court to determine whether or not they are refugees.
The first respondent submitted that the present proceedings were frivolous and vexatious. Given my findings in relation to the lack of reasonable prospects of success and abuse of process, it is not necessary, strictly speaking, to make findings in that respect. I note that a conclusion that proceedings are frivolous or vexatious is not a conclusion that should be drawn readily (see Attorney-General for Victoria v Wentworth (1988) 14 NSWLR 481). In contrast to cases in which applicants rely on incomprehensible or entirely unparticularised grounds, in this case the applicants have made an attempt to clarify and particularise grounds of review and assert a basis for review that was not as clearly presented in the prior proceedings, based on the involvement of a third party, albeit Anshun estoppel would apply to such a ground as such matter properly belonged to the subject of earlier litigation and could have been brought forward in the earlier litigation by a party exercising reasonable diligence. However, notwithstanding this and the absence of prospects of success of an argument based on the principles in SZFDE, I do not consider that the circumstances in this case are such as should be characterised as frivolous and vexatious. The characterisation of the present proceedings as an abuse of process based on the prior proceedings is not of itself such as to mean that I should also make a finding that the proceedings are frivolous and vexatious. There is sufficient basis in the findings that I have made for the proceedings to be dismissed pursuant to either Rule 13.10(a) or Rule 13.10(c).
I am also asked to make an order that no further application by the applicant to review the delegate's or Tribunal's decision be accepted for filing except with leave of the Court. I note the concern that has been expressed on occasion about the efficacy of such orders (see in particular SZASP v Minister for Immigration and Citizenship [2007] FCA 77 at [24] per Moore J). I have given the benefit of the doubt to the applicants in relation to their understanding of the circumstances in which they find themselves and do not consider it appropriate to make such an order. Nonetheless for their benefit I note that were they to attempt to reinitiate proceedings in this Court on the same basis my conclusions might be otherwise in relation to whether the proceedings were vexatious and as to whether an order should be made preventing them from initiating further proceedings without the leave of the Court.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful in that the notice of motion of the first respondent has succeeded. It is appropriate that the unsuccessful applicants meet the costs of the first respondent. The Minister seeks costs in the sum of $2,500. The applicants seek that this should be reduced as it would be helpful to them. However the amount sought is appropriate in light of the nature of this and other similar matters and the provisions in the Federal Magistrates Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 December 2008
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