Applicant S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285

FEDERAL COURT OF AUSTRALIA

Applicant S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 APPLICANT S 1000 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1948 OF 2004 SELWAY J 9 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1948 OF 2004

BETWEEN: APPLICANT S1000 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 9 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The time within which the applicant was to file an application seeking leave to appeal be extended to 8 March 2005. 2. Leave to appeal is refused, and the application seeking such leave is dismissed. 3. The applicant to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1948 OF 2004

BETWEEN: APPLICANT S1000 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 9 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of the Federal Magistrates Court given on 13 December 2004 (see [2004] FMCA 963). The learned Federal Magistrate dismissed judicial review proceedings on the basis the proceedings were vexatious and an abuse of process. 2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck (2003) 203 ALR 1 at 4, [9], and Port of Melbourne Authority v Anshun (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216, Lindsey v Philip Morris Limited [2004] FCAFC 40, and in Johnson Tiles Pty Limited v Esso Australia Pty Limited (2000) 104 FCR 564, [43]. 3 Consequently, as the order of the Federal Magistrates Court was an interlocutory one, leave is required before the appellant can appeal: see s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth). 4 Originally the appellant did not seek such leave and, on 10 January 2005, the Minister issued a Notice of Objection to Competency. 5 Of course, the applicant is unrepresented. It is understandable that he was not aware of the complexities of appellate procedure. When this matter came on before Gyles J on 8 February 2005, his Honour ordered that the applicant file and serve an application for leave to appeal and evidence in support. That has now been done. The applicant has today made an oral application for an extension of time in which to seek leave to appeal. That application was not opposed by the Minister. 6 The applicant has also filed an outline of submissions. Those submissions are directed to the issue of whether the Refugee Review Tribunal was correct in the original decision from which the applicant sought judicial review, and the argument as to whether he was afforded procedural fairness before the Tribunal. In general terms, the oral submissions that he has made today are directed to the same issues. 7 Being an application for leave to appeal, it is one that can be dealt with by a single judge. The issues relevant to the granting of such leave were considered by the Full Court of this Court in Decorp Corporation Pty Limited v Dart Industries Incorporated (1991) 33 FCR 397 at 398-400. What is involved is a balancing of considerations including the prospects of success of the proposed appeal and whether there will be substantial injustice if leave were refused. 8 The applicant is a citizen of Bangladesh. He arrived in Australia on 12 July 1995. On 26 August 1998, he applied for a protection visa. In order to be granted such a visa, the Minister had to be satisfied that the appellant was a person to whom Australia had protection obligations under the Refugee Convention: see s 36(2)(a) of the Migration Act 1958 (Cth). 9 The applicant claimed he feared persecution if he was returned to Bangladesh by reason of his political opinion, namely his membership of the Bangladesh Nationalist Party. That claim was ultimately considered by the Refugee Review Tribunal. On 20 March 2000, the Tribunal dismissed the claim and affirmed the previous decision not to grant the applicant a protection visa. The reason why the Tribunal rejected his claim was that it rejected his credibility. It concluded that he was a highly unreliable witness. It was not satisfied that he faced a real chance of "Convention related" persecution. 10 The learned Federal Magistrate, in his reasons, explained what steps the applicant took to seek the review of the Tribunal decision: 'The RRT decision has been the subject of several earlier judicial review proceedings. On 28 April 2000, an application under the form of section 476 of the Migration Act 1958 (Cth) ("the Migration Act") was filed in the Federal Court. That application sought judicial review on the grounds that cover the same ground as the present judicial review application. In fact, the first judicial review application went a little further. On 7 September 2000, the day that case was listed for hearing, His Honour Gyles J made orders giving the applicant leave to discontinue the proceeding. The applicant was ordered to pay the Minister's costs. In about October 2000, the applicant joined the Muin and Lie class action. Pursuant to orders of Gaudron J of the High Court on 25 November 2002 the applicant, through his solicitors, filed an affidavit annexing a draft order nisi on 20 May 2003 in the High Court in Sydney. Gaudron J remitted the proceedings to the Federal Court. On 30 April 2004 His Honour Emmett J refused the application for an order nisi. The present application was made some 10 days later.' 11 The learned Federal Magistrate dismissed the application as an abuse of process. The Magistrate nevertheless considered whether there was any jurisdictional error in the approach of the Tribunal. The Magistrate discussed the alleged errors and concluded there was no substance in them. 12 However, the primary basis for dismissing the application was that it was an abuse of process. As the Federal Magistrate said: 'In my view, there is no substance to the present judicial review application. The grounds substantially mirror grounds advanced in the Federal Court proceedings four years ago. The applicant had a further opportunity to agitate these grounds when his proceedings were severed from the Muin and Lie class action remitted to the Federal Court. The interests of the administration of justice certainly do not require that the applicant be given a further opportunity. On the contrary, the interests of the administration of justice require that the applicant be denied that further opportunity.' 13 In my view, the learned Federal Magistrate was undoubtedly correct in concluding that the institution of these fresh proceedings involved an attempt to relitigate the same issues that had been dismissed by Emmett J and discontinued before Gyles J. It was an abuse of process. See Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 242. 14 In both of the previous proceedings there was no "final order". However, there were orders bringing the proceedings to an end. The re-litigation of proceedings that have been finalised may be an abuse of process. As acknowledged in Wong, there are exceptional circumstances where a person might be given leave to re-litigate an issue that was or should have been resolved in earlier proceedings. However, as the learned Federal Magistrate properly remarked: 'The interests of the administration of justice certainly do not require that the applicant be given a further opportunity.' 15 In any event, it is clear that the applicant cannot succeed on the merits of his judicial review application. His argument is directed to a rehearing on the merits of the issues considered by the RRT. In particular, he argues that he was not given a fair hearing because the Tribunal did not give him a further opportunity to convince it of his honesty. However, he has not pointed to any issue where he has been misled or would have brought some different or other material to the attention of the Tribunal. See Applicant A218 of 2003 v The Refugee Review Tribunal [2004] FCA 1430. 16 The Tribunal did not believe the appellant. It was within their jurisdiction not to do so. In my view, even if the appellant could overcome the problem he faces with abuse of process, he still cannot succeed on his appeal if leave were granted. 17 In the circumstances, the applicant has no prospect of success on an appeal if leave were granted. The appropriate order is to refuse leave to appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.