SZLHJ v Minister for Immigration

[2007] FMCA 1947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1947

MIGRATION – Non-disclosure of previous judicial review proceeding – breach of s.486D(1) – dismissal – no reasonable prospect of successfully prosecuting the proceeding or claim – whether proceeding vexatious – restrained from commencing further proceedings.

Migration Act 1958 (Cth), ss.425, 477, 486D(1)
FederalMagistrates Act 1999 (Cth), s.15(a)
Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 16.01, 44.06(2)(d)

Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Devries v Australian National Railways Commission (1993) 177 CLR 472

Abalos v Australian Postal Commission (1990) 171 CLR 167
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581

Applicant: SZLHJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2789 of 2007

Judgment of: Turner FM

Hearing date: 19 October & 15 November 2007

Date of last submission: 15 November 2007

Delivered at: Sydney

Delivered on: 15 November 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E. Baggett of DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The matter be dismissed pursuant to Rule 13.10(a) because the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

3. The matter be dismissed pursuant to Rule 13.10(b) as it is frivolous and vexatious.

4. The matter be dismissed for non-compliance with s.486D(1) of the Migration Act 1958 (Cth).

5. Pursuant to s.15(a) of the FederalMagistrates Act 1999 (Cth), the Registry not accept for filing any further applications by the applicant for review of the decisions of the delegate and of the Refugee Review Tribunal in these matters (SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at 586 [27]).

6. Pursuant to Rule 13.11(1)(b), that the applicant may not initiate any proceeding in relation to the decisions of the delegate or the Refugee Review Tribunal in these matters without the prior leave of the Court.

7. The applicant to pay the costs of the first respondent fixed at $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2789 of 2007

SZLHJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 2 January 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

2. In his response, the first respondent opposes the making of all orders sought in the application on the basis that:

   (a)no reasonable cause of action is shown;

   (b)the application is frivolous or vexatious; and

   (c)section 486D has been breached.

   The Court ordered that there be an immediate hearing on those issues. The Court proceeded to hear the matter on 19 October 2007 and was in the course of delivering an ex tempore judgment when the interpreter stated that she was having difficulty interpreting the judgment and had been having difficulty throughout the hearing. The Court therefore adjourned the matter to be heard today and stated that the applicant could put his submissions to the Court today, which he has done.

3. The applicant’s relevant litigation history is as follows (extracted from the affidavit of Therese Mary Quinn, affirmed 25 September 2007):

DATE	EVENT
04.10.06	Application for protection visa lodged
30.10.06	Application refused by a delegate of the first respondent
02.11.06	Application for review lodged with the RRT
02.01.07	RRT affirmed the decision of the delegate
01.02.07	Application for judicial review lodged with this Court (SYG 311/2007). Applicant’s pseudonym SZHIV
30.04.07	Application for judicial review dismissed by Scarlett FM
11.09.07	Present application filed. Applicant given pseudonym SZLHJ

Issues for determination

1. The issues before the Court are as follows:

   ·Whether there is a reasonable prospect of successfully prosecuting the proceeding;

   ·Whether non-disclosure of previous judicial review proceeding in breach of s.486D(1) should lead to dismissal of the matter;

   ·Whether the present proceeding is frivolous or vexatious;

   ·Whether the applicant should be restrained from commencing further proceedings.

The application

1. In his application, the applicant set out four grounds as follows:

   (1)That the Tribunal exceeded its jurisdiction in making the decision that the applicant did not in fact have a well-founded fear of persecution if he returned to Vietnam, by reason of his race. The applicant is of Chinese background and Vietnamese authorities are well-known for the persecution of Vietnamese nationals of a Chinese background/origin.

   (2)The Tribunal failed to adequately consider and give reasonable weight to the fact that the applicant and his family had suffered extreme persecution amounting to physical torture whist in Vietnam, and that the applicant would indeed be subjected to the same treatment if he returned to Vietnam.

   (3)The Tribunal denied the applicant procedural fairness when it disallowed the applicant from submitting evidence in support of his claimed persecution, instead of otherwise allowing him to submit evidence in accordance with s.425 of the Migration Act 1958.

   (4)The Tribunal failed to consider me as a credible witness when I gave oral evidence in support of my claims. This aspect of the Tribunal’s decision-making points to the fact that it failed to afford the applicant natural justice.

2. The applicant seeks an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Act”). Because of the decision in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 an extension is not necessary.

3. The applicant has conducted previous judicial review proceedings before this Court in relation to the decision of the Tribunal now before the Court. Those proceedings were dismissed by Federal Magistrate Scarlett on 30 April 2007 (affidavit of Therese Mary Quinn, affirmed on 25 September 2007 at para 4 and page 67).

4. Section 486D(1) of the Act provides:

   486D  Disclosing other judicial review proceedings

   (1) A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

5. When commencing the present proceeding, the applicant did not disclose to the Court the judicial review proceeding already brought before Federal Magistrate Scarlett. The applicant’s application in this matter does not disclose his previous judicial review application, nor does his affidavit filed on the same day. The Court brought to the attention of the applicant the requirement in the form to disclose such proceedings. The applicant stated that he did not disclose that because he was not able to obtain legal advice. Ignorance of the law is no excuse and the applicant has not complied with s.486D of the Act. Section 486D(1) requires disclosure to be made “when commencing the proceeding”. The proceeding was commenced when the applicant filed his application and affidavit; neither disclosed the applicant’s previous proceeding. The proceeding has therefore been commenced in breach of s.486D(1). The applicant was made aware of the requirement in s.486D(1) in the application form he completed.

6. Rule 44.06(2)(d) of the Federal Magistrates Court Rules 2001 provides that a respondent may oppose an application on the ground that the applicant has not complied with s.486D(1). The first respondent opposes the application on that ground. A breach of s.486D(1) has been established. The first respondent seeks dismissal of the application for this and other reasons. Pursuant to Rule 16.01, the Court orders that the application be dismissed for non-compliance with s.486D(1).

7. The first respondent seeks also to have the application dismissed because it is frivolous or vexatious. The Court is satisfied that the applicant has already had a previous application for judicial review of the decision of the Tribunal dealt with and dismissed by this Court. The Court therefore finds the current application to be vexatious and dismisses it pursuant to Rule 13.10(b).

8. The Court will now proceed to consider the grounds in the application.

9. Ground one of the application seeks to review findings of fact, which is not a function of this Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

10. Ground two complains about the weight given to evidence and about a finding of fact. Both of those matters are for the Tribunal to decide: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].

11. Ground three alleges that the applicant was prevented from putting evidence before the Tribunal; a copy of the transcript of the hearing before the Tribunal has not been filed by the applicant. An applicant must establish their case. There is therefore nothing to support the submission by the applicant. It is rejected.

12. Ground four complains about the adverse findings of credibility made by the Tribunal; that is a finding of fact by the Tribunal that is not open to review. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.

1. The Court rejects all grounds in the application.

2. The first respondent seeks that the application be dismissed because no reasonable cause of action is disclosed. The Court agrees.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: M Giang 

Date:  21 November 2007