FEDERAL COURT OF AUSTRALIA

Applicant S1430 of 2003 v Minister for Immigration & Citizenship [2007] FCA 1186

APPLICANT S1430 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 895 OF 2007

EDMONDS J

10 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the sum of $3,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application for leave to appeal from the Federal Magistrates Court (Emmett FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant the applicant a protection visa.

Previous Proceedings

2                     The applicant has challenged the decision not to grant him a protection visa on previous occasions both in this Court and other courts.  On 3 October 2000 Sackville J dismissed by consent an application in this Court for review of the Tribunal’s decision.  The applicant then commenced proceedings in the High Court of Australia joining the class action in Muin v Refugee Review Tribunal (2002) 190 ALR 601 seeking review of the Tribunal’s decision.  The matter was remitted to this Court and on 20 February 2004 the applicant’s draft order nisi was refused.  The applicant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court (Raphael FM).  The application to that Court was dismissed on 26 October 2004.  The applicant then proceeded to file an appeal in this Court with the appeal being dismissed by Tamberlin J on 7 March 2005.

This proceeding Below

3                     On 11 December 2006 the applicant initiated, for the third time, Federal Magistrates Court proceedings for review of the Tribunal’s decision.  The matter was listed for a show cause hearing pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 (‘the Rules’).  The applicant attended the hearing and on 22 March 2007 Emmett FM dismissed the applicant’s application on the basis that it was incompetent; it was out of time in terms of subs 477(1) of the Migration Act 1958 (Cth) (‘the Act’) and the time for making an application for an extension order under subs 477(2) had long expired.  In the circumstances, her Honour was of the view that subs 477(3) denied the Court jurisdiction to extend the time for filing the applicant’s application.

4                     On the show cause hearing below the Minister submitted that, in the alternative, the application ought to be dismissed pursuant to Rule 13.10(a), 13.10(b) and 13.10(c) of the Rules on the grounds that the current proceedings are vexatious and/or an abuse of process and/or no reasonable cause of action is disclosed.  In the face of her Honour’s conclusion on the competency of the applicant’s application as outlined in [3] above, it was unnecessary for her Honour to deal with this alternative submission.

5                     The judgment of her Honour below is interlocutory – para 44.12(2) of the Rules – and, by virtue of subs 24(1A) of the Federal Court of Australia Act 1975 (Cth), an appeal to this Court cannot be brought without the leave of the Court or a judge.

Leave application

6                     The test of whether leave to appeal is granted or refused has been put on the dual bases of whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [9].

7                     If the only basis upon which it was put that the applicant’s application in the show cause proceedings below should be dismissed was the basis upon which her Honour so concluded, then, in my view, in the face of the recent decision of a Full Court of this Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, there would be sufficient doubt as to the correctness of her Honour’s decision to warrant a grant of leave.  In that case the Full Court (Gyles, Jacobson and Buchanan JJ) held that for the purposes of s 477 of the Act actual notification to an applicant of a decision of the Tribunal must be accomplished by physical delivery of a written statement prepared by the Tribunal in accordance with s 430(1) to the applicant personally.  In the present case, there was no evidence that that ever occurred.

8                     On the other hand, as indicated in [4] above, it was also submitted that the applicant’s application below should be dismissed on the ground, amongst others, that it was an abuse of process: para 13.10(1) of the Rules.  This submission was repeated on behalf of the Minister on the leave application in the following way.

‘The Applicant pleads one ground in his draft notice of appeal, namely that the Tribunal was biased.  The Applicant refers to a transcript of the Tribunal hearing, in particular where the Tribunal member tells the Applicant that he had great difficulty believing the Applicant’s story.  This statement from the Tribunal was made after considerable questioning of the Applicant regarding his claims.  The Tribunal did not have a closed mind.  Its findings on credibility were open to it on the evidence before it.  Accordingly, any allegation of bias cannot be made out.

The First Respondent submits that in any event, the Tribunal decision has been reviewed by the Federal Magistrates Court, the Federal Court and the High Court.  Having regard to the Applicant’s extensive litigation history as set out in the affidavit of Andrea Maree Mansour, the First Respondent submits that the application for leave to file a notice of appeal in this court seeking review of the same Tribunal decision constitutes an abuse of process.’

9                     In his written submissions the applicant stated that his grounds of appeal were bias and natural justice although it is clear from those submissions that it is one ground not two – ‘the Tribunal is required to accord natural justice [and] must act without bias’.  This allegation was fully dealt with by Raphael FM in the 2004 proceedings, S1430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 808 at [13] although there his Honour equated the allegation of bias to an allegation of lack of procedural fairness rather than a failure to accord natural justice.  This allegation was also referred to by Tamberlin J on appeal in S1430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 210 at [6].

10                  In my view, having regard to the previous proceedings, these current proceedings are an abuse of process and had her Honour not dismissed them on the ground that she did, she would have been entitled to do so on this ground.  Moreover, even assuming such a decision would have been wrong, I do not think substantial injustice would result if leave were refused.  The applicant has had more than sufficient opportunities to undertake judicial review of the Tribunal’s decision and he has fully availed himself of these opportunities; and he has failed on each occasion.  Such failure does not warrant a grant of leave to avail him of a further opportunity.

11                  The application for leave must be refused with costs.

Associate:

Dated:         10 August 2007