SZVEY v Minister for Immigration

[2015] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 768

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Abuse of process – summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 477

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28
Kong v Minister for Immigration & Citizenship (2011) 199 FCR 375; [2011] FCA 1345

Applicant: SZVEY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 846 of 2015

Judgment of: Judge Street

Hearing date: 30 March 2015

Date of Last Submission: 30 March 2015

Delivered at: Sydney

Delivered on: 30 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr F. Nikjoo
Michaela Byers Solicitor

Solicitors for the Respondents: Ms N. Blake
Australian Government Solicitor

ORDERS

1. Application for extension of time is refused.

2. Proceedings be summarily dismissed.

3. Applicant pay First Respondent’s costs fixed in the sum of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 846 of 2015

SZVEY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional under the Court’s jurisdiction under s.476 of the Migration Act 1958. The applicant filed on 23 April 2015 an application alleging a combination of grounds of alleged jurisdictional error in respect of a decision of the Tribunal delivered on 1 September 2014 and in circumstances where the applicant has received a notice on 26 March 2015 of intention that she be remove from Australia on 31 March 2015.

2. I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

3. The application was filed by a solicitor of the Court and the notice was ticked that no extension of time was required under s.477, which was wrong. More importantly however, it appears that the applicant had in fact filed an application on 2 October 2014 in respect of the very same decision of the Tribunal of 1 September 2014, although the applicant was at that stage self-represented, which application was dismissed by an order of this Court on 4 February 2015 by Judge Cameron. No appeal has been taken from that decision of Judge Cameron by the applicant to the Federal Court of Australia.

4. The Court was provided with an affidavit by the solicitor of the applicant sworn today which annexed a copy of the pro-forma letter from 12 March 2014 in respect of the data breach that had occurred, and which matter went to one of the new purported grounds sought to be raised by the applicant in the current application as well as an example letter which was dated 9 February 2015.

5. The Court was informed that the solicitor on the record, and as such the deponent of the affidavit sworn and filed today, was not aware that there were other proceedings that had been taken and determined in respect of the same applicant and same Tribunal decision.  The Court was informed that on Friday some endeavour was made by the applicant’s solicitor to identify whether there had been any other application concerning the Tribunal decision but I accept what I have been informed from the bar table that the solicitor was unaware of the actual proceedings that had been filed before Judge Cameron and was unaware of the orders that had been made by Judge Cameron on 4 February 2015. 

6. It would clearly be inappropriate for the solicitor of the applicant to file the affidavit or the application to which I have referred without disclosing the existence of the earlier proceedings and/or the making of the earlier order in the very same matter in respect of the same Tribunal decision.  I take into account however, that this is a matter where it is very clear from the decision of the Tribunal that the applicant was a person who was prepared after an unsuccessful visa application in 2010, to evade the authorities for almost four years until detained.  The further application made during detention for the evaluation of a complementary protection claim, was rejected by the Tribunal on 1 September 2014. The Tribunal found the applicant to be a person whose credibility was seriously questioned by the Tribunal. In fact the Tribunal found in para.15 that the applicant had been fabricating evidence in respect of those claims.

7. It is in those circumstances I find that the solicitor on the record must have been deceived by the applicant in taking the steps of filing this application, purporting to seek a review for jurisdictional error of the decision of the Tribunal and then filing the affidavit annexing pro-forma correspondence.

8. It is clearly an abuse of process by the applicant to bring further proceedings in this Court on the very same decision of the Tribunal in circumstances where the earlier decision of this Court by Judge Cameron and the making of the order of Judge Cameron on 4 February 2015 has been concealed by the applicant.

9. I was taken to the decision of Kong v Minister for Immigration & Citizenship (2011) 199 FCR 375; [2011] FCA 1345, in which the headnote inaccurately suggests that Justice Flick decided the matter on the grounds of res judicata and Anshun estoppel. That decision does however identify in the public interest in preventing an abuse in administrative decision making. This court’s Constitutional writ jurisdictional arising under s.75(v) of the Constitution and conferred pursuant to s.476 of the Migration Act is not a jurisdiction that is shackled by the principles of res judicata or Anshun estoppel. It is however, a case that there is a public interest in the certainty of administrative decision making and where earlier decisions have been challenged in a second set of proceedings in respect of the same decision, full and frank disclosure as to the earlier decision is essential.

10. It is an abuse of process for the applicant in this case to conceal from the Court the earlier proceedings and the earlier adverse order made in this Court. There may be the circumstances where earlier decisions will justify the making of a fresh and distinct arguable case concerning jurisdictional error under s.75(v), but that would require a candid disclosure as the nature of the application and the reasons why a fresh ground of jurisdictional error can now be entertained. It will be exceptional circumstances in which this occurs.

11. This Court’s Constitution jurisdiction under s.75(v) was not shackled with any common law concepts like estoppel. Mr Nikjoo, the solicitor who appeared, for the applicant has frankly conceded the problems as a result of the earlier proceedings of which he and the solicitor on the record were earlier unaware.

12. I should indicate that there is no substance in the grounds of the application.  Prior to being informed of the earlier proceedings the Court raised with Mr Nikjoo the adverse finding of fact concerning the alleged data breach in para.29, and that that finding of fact appeared open on the material before the Tribunal. This was another case where no step had been taken by the applicant under the penultimate sentence of the letter dated 14 February 2014 and in which the Tribunal clearly addressed the limited nature of the disclosure that had taken place.   The Tribunal made adverse findings of fact in respect of the alleged fears by the applicant in respect of the disclosure that occurred as identified in the letter dated 12 March 2014 and the disclosure did not make the applicant a refugee sur place. 

13. The applicant has had the opportunity before the Tribunal of a genuine hearing in relation to the complementary protection claims which the applicant made. The Tribunal made adverse findings in relation to the applicant’s credibility that I will not in these circumstances have set out in full. Relevantly the applicant’s claims were rejected in part on grounds of credit. The Tribunal relevantly concluded:

    37. The Tribunal accepts, based on the findings of the previous Tribunal, that the applicant has been involved in Christian activities here in Australia.  She stated that she had a baptism certificate but when the Tribunal stated that it was a matter for her as to whether she wanted to provide it as evidence she stated that she would not do so.  There is no evidence before the Tribunal to suggest that she would be harmed as a result of being involved in Christian activities here in Australia if she did not continue those activities upon her return to China, which the Tribunal does not accept that she would do.  The independent country information states that citizens have a right to belong to five state-sanctioned “patriotic religious associations” which include Catholic and Protestant groups.   Therefore, the Tribunal does not accept that a person would be adversely targeted for having participated in Christian activities overseas.  Therefore the Tribunal is not satisfied that it has substantial ground for believing that there is a real risk that she would be harmed as a result of her Christian activities if she was to return to China.

    38. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

    39. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2)(c).

    40. Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) or (c).

14. The application as filed, on the face of the decision, was doomed to failure with no reasonable prospects of success.

15. The application identified that the applicant had obtained an adverse decision in relation to a protection visa, having come out to Australia on a subclass 580 Student Guardian visa in 2007 and had evaded the authorities since the time of her adverse decision on 9 March 2010, until she was located and detained 22 January 2014. 

16. The evasion of the authorities in circumstances of an adverse protection visa determination and the conduct of the applicant in avoiding location and in complying with the earlier decision, would of itself have provided a compelling discretionary consideration that would have warranted dismissing the applicant’s application even if there had been identified any arguable jurisdictional error. This was an issue that I raised with Mr Nikjoo at the start of the case. He accepted that it was a significant matter in relation to the discretionary considerations if they were to arise.

17. The only argument of jurisdictional error that was advanced related to the decision of the Tribunal and in response to the invitation as to whether there was any other alleged excess of jurisdiction that could justify any relief being granted by this Court under s.75(v), no other argument was advanced.

18. I am satisfied from the material before the Court that the First Respondent has not engaged in any excess of jurisdiction in the steps that are being taken and there is no excess of jurisdiction in respect of the notice of intention of removing the applicant from Australia.  

19. When the earlier conduct of the applicant in evading detection for four years after an adverse decision on her protection visa application is taken into account together with the concealment of the earlier proceedings which make these proceedings an abuse of process, there are further compelling matters that would be material to the issue of discretion.  In this case, this conduct would as a matter of discretion give rise to this Court declining to grant any discretionary relief to the applicant in respect of the alleged jurisdictional errors, even if they had been made out. These proceedings are an abuse of process with no reasonable prospect of success.  The application for an extension of time is refused. The proceedings are summarily dismissed.

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

Associate: 

Date:  31 March 2015