SBFF v Minister for Immigration and Citizenship [2007] FCA 178 (22 February 2007)

PROCEDURE – whether summary dismissal as an abuse of process in the Federal Magistrates Court final or interlocutory decision – abuse of process because issues already decided in other proceedings by applicant

PROCEDURE – time to file appeal against interlocutory judgment of the Federal Magistrates Court – Federal Court Rules O 52 r 5(2)

Migration Act 1958 (Cth) ss 476-477, 486A
Federal Court of Australia Act 1976 (Cth)
Migration Litigation Reform Act 2005 (Cth)
Federal Court Rules

Re Luck [2003] HCA 70; (2003) 78 ALJR 177 distinguished
Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41; (1980) 147 CLR 35 applied

SBFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

SAD 241 OF 2006

MANSFIELD J
22 FEBRUARY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 241 OF 2006

BETWEEN:	SBFF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	ADELAIDE

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 241 OF 2006

BETWEEN:	SBFF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MANSFIELD J
DATE:	22 FEBRUARY 2007
PLACE:	ADELAIDE

1 The applicant seeks leave to appeal from a decision of Raphael FM of 26 September 2006. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the RRT) of 20 October 2004. The RRT affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2 The Federal Magistrate dismissed the review application as an abuse of process under r 13.10(c) of the Federal Magistrate Court Rules 2001, and ordered the applicant to pay the costs of the first respondent. His Honour’s reasons also indicate that he dismissed the application because he did not have the jurisdiction to entertain it, although his order of 26 September 2006 is confined to the abuse of process determination.

3 The parties proceeded on the basis that, as the application to the Federal Magistrates Court was determined summarily as an abuse of process, it is an interlocutory judgment: see Re Luck [2003] HCA 70; (2003) 78 ALJR 177; SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 at [48]; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [8]- [15]; SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798. The nature of the present application, being an application for leave to appeal, appears to recognise that position: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA). By way of contrast, an appeal lies as of right from a final decision of the Federal Magistrates Court: see s 24(1)(d) of the FCA.

4 The respondent submitted that the applicant’s application for leave to appeal was out of time as O 52 r 10(2A)(b) allows seven days to file the application from the date judgment was pronounced. That Rule applies only where leave to appeal is sought from an interlocutory judgment of the Federal Court. The time for filing an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court is set out in O 52 r 5(2), which allows 21 days. Consequently, this application (if it is properly an application for leave to appeal), having been made on 13 October 2006, was made in time.

5 In my view, leave to appeal the Federal Magistrate’s decision is not required as I think the decision of Raphael FM was a final decision.

6 There are a number of decision of the Court which, in different circumstances, treat summary dismissal as an interlocutory judgment or as a final judgment: cf SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 with NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975; MZXEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 507; MZXIW v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 123; MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466.

7 The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41; (1980) 147 CLR 35 and Re Luck [2003] HCA 70; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33], Lander J suggested that those two decisions may not sit readily together.

8 In the more recent case of Re Luck [2003] HCA 70; 78 ALJR 177 at 179, the High Court (McHugh ACJ, Gummow and Heydon JJ) said:

The High Court was concerned with whether summary dismissal in that circumstance would finally determine the rights of the parties. In that case, Ms Luck had been refused leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court or a frivolous or vexatious proceeding. It was concluded that her rights had not been finally determined because she retained the right to issue proper proceedings.

9 But their Honours did not seek to qualify or explain what had earlier been said in Anshun [1980] HCA 41; 147 CLR 35, and the unequivocal statement at page 179 does not specifically refer to decisions such as in this case, where the applicant’s application to review the decision of the RRT for the second time sought to go behind an already final judgment which had finally determined his rights.

10 Anshun [1980] HCA 41; 147 CLR 35 recognises that different results flow, depending on the grounds on which a proceeding is deemed to be an abuse of process. At 38, Gibbs J said:

The Court held in Anshun [1980] HCA 41; 147 CLR 35 that summary dismissal in the latter circumstances did finally determine the rights of the parties and so should be considered a final, rather than interlocutory, judgment.

11 In this matter, the applicant seeks to challenge afresh a decision that he has already unsuccessfully challenged in the Federal Magistrates Court and in this Court. His application for special leave to appeal is still before the High Court. The decision of Raphael FM, that the fresh application was an abuse of process, was based upon the application of the principles in Anshun [1980] HCA 41; 147 CLR 35. In my view it was therefore a final judgment. I consider that it finally determined the applicant’s rights, as he has now (subject to the present proceeding before this Court) no right to further challenge the RRT decision, except by pursuing his earlier application for special leave to appeal to the High Court.

12 Accordingly, strictly speaking, in my view leave to appeal from the decision of Raphael FM was not necessary.

13 In the result, my view on that issue does not matter. If leave to appeal were necessary, I would refuse it for the reasons set out below. If leave to appeal were not necessary, I would dismiss the appeal for the same reasons.

14 In my view, there is no prospect of the appeal or proposed appeal being successful.

15 The applicant is a citizen of Nepal who moved to Australia on 7 December 2003. He promptly applied for a protection visa under the Act. He claimed to have a well-founded fear of persecution in Nepal because he had refused to participate with the Maoist rebel movement, and had then become a prime target of that movement. He claimed to have been a focus of the members of that movement because he had previously lived in India and had been a high ranking officer in the Indian defence force with expertise in weaponry.

16 The RRT accepted the applicant’s background, and that he had been asked to assist the Maoist movement and that he had refused. It found, however, that he did not have a well-founded fear of persecution, as he claimed, because he had subsequently spent some 18 months in Nepal without harm, including maintaining his business and house until about four months before leaving for Australia. It did not, therefore, have to consider whether the Nepalese authorities did not provide him with the level of protection available from non-state violence to which he was entitled.

17 The RRT also concluded that, because the applicant had previously lived in India, he and his family could reasonably return and live in India without harm from the Nepalese Maoist movement. It is unclear from the RRT’s reasons whether that alternative basis for its conclusion involved a misapprehension about the internal relocation principle (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, or an assessment that Australia did not owe protection obligations to the applicant by reason of s 36(3) of the Act as explained in s 36(4) and (5) of the Act because he had the capacity to secure safe haven in another country. It did not dilate on its reasons for that conclusion.

18 The reason why Raphael FM regarded the application as an abuse of process is quite clear. Following the decision of the RRT, the applicant sought review of its decision in the Federal Magistrates Court on 8 November 2004. That application was instituted in the Sydney Registry of the Federal Magistrates Court. It was dismissed by Lloyd-Jones FM on 27 January 2006. An appeal to this Court from that decision was instituted in its Sydney Registry on 13 February 2006. It was dismissed by Edmonds J on 12 May 2006: SZERD v Minister for Immigration and Multicultural Affairs [2006] FCA 560. The applicant then applied to the High Court for special leave to appeal from that decision. The application for special leave to appeal, instituted on 1 June 2006, was deemed to have been abandoned on 29 June 2006 under the High Court Rules, but it was subsequently reinstated by order of Kirby J on 14 August 2006. It is still, apparently, in the list of cases in respect of which special leave to appeal to the High Court is to be determined.

19 Raphael FM, in the light of that history, described the present application as seeking simply to re-agitate matters that had already been decided adversely to the applicant. Consequently, his Honour regarded the application as an abuse of process.

20 In my view, that conclusion was unexceptionable. The grounds of review in the application to the Federal Magistrates Court in its Sydney Registry are very similar to those expressed in the application to the Federal Magistrates Court in its Adelaide Registry and heard by Raphael FM. In essence, they are the same. They commonly complain of bias or ostensible bias on the part of the RRT, of a failure on its part to accord the applicant procedural fairness, of a failure on its part to comply with s 424A of the Act, and of unreasonableness in its factual decision-making. Those matters were all addressed by Lloyd-Jones FM, and then on appeal by Edmonds J.

21 The only apparently additional information available to Raphael RM was the transcript of the hearing before the RRT. Neither in his oral submissions, nor in his written submissions, nor apparently before Raphael FM, was any specific reference made to any part of that transcript. I have considered the transcript and the outline of submissions. I did not discern that it provides any basis for the applicant making out any of the complaints which he unsuccessfully made previously to Lloyd-Jones FM and to Edmonds J in a way which was not appreciated by them. In any event, the applicant (although now self-represented) was represented by counsel before Lloyd-Jones FM and there was no apparent suggestion then that his complaints would have had more strength if the transcript of the RRT hearing was available. Nor is there any indication that the transcript was then sought by him.

22 The applicant’s submissions did not identify, nor even suggest, that there was any error of principle in the approach of Raphael FM in addressing r 13.10(c) of the Federal Magistrates Court Rules. The focus remained on the RRT’s reasons. There was only a passing reference in the application to this Court that his Honour failed to accord the applicant procedural fairness. No particulars of that allegation were given, and nothing was put in writing or in oral submissions in support of it. It is simply an assertion without foundation.

23 I note that Raphael FM was told by the applicant that his application for special leave to appeal to the High Court, having been reinstated, had subsequently been dismissed. Counsel for the first respondent indicated that that was not the case, and on this application orally the applicant did not dispute that fact. There is no apparent record of a decision having yet been made on his application for special leave to appeal. I do not think that any misunderstanding induced by the applicant on that score affects in any way the reasoning of Raphael FM. In my view, it is clearly a case where the applicant is seeking to re-litigate a case both in the Federal Magistrates Court in its Adelaide District Registry and in this Court in the Adelaide District Registry which he has already litigated, and which has already been determined adversely to him, and in circumstances where no new significant information has been brought forward to explain why that is being done. In my judgment, the application dismissed by Raphael FM was clearly an abuse of the process of the Court: see Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378.

24 As I have concluded that there is no real prospect of showing error on the part of Raphael FM in dismissing the application as an abuse of process, I need deal only briefly with other matters relevant to granting leave to appeal from that decision. There is no important point of principle sought to be raised by the applicant in respect of the decision of Raphael FM. The only assertion directly concerning that decision is the brief and undeveloped one that the applicant was not accorded procedural fairness by Raphael FM. But nothing has been identified to suggest any general importance to the assertion; it is one apparently made in the circumstances of this particular case. Nor, in my view, is there made out any foundation for the assertion.

25 Otherwise, as I have noted, the contentions focused on the decision of the RRT. That decision was reviewed by Lloyd-Jones FM and by Edmonds J. The issue whether the applicant should be entitled to have the RRT decision reviewed independently by a separate and belated application to the Federal Magistrates Court is a discrete one, again to be addressed in the particular circumstances.

26 In the event that the applicant has ongoing complaints of general importance arising from the RRT’s decision, following the decisions of Lloyd-Jones FM and of Edmonds J, his proper course is (as he has done) to seek special leave to appeal to the High Court. His complaints will be considered on the hearing of the application for special leave to appeal.

27 The learned Federal Magistrate’s alternative basis for dismissing the application, namely his conclusion that the Federal Magistrates Court did not have jurisdiction to hear and determine the application was based upon s 477 of the Act. By the Migration Litigation Reform Act 2005 (Cth), s 477 was amended to prescribe a time limit within which any application under s 476 might be brought to the Federal Magistrates Court. Because the RRT decision was given on 20 October 2004, for the purposes of s 477, the applicant was taken to have been notified of the RRT decision only on 1 December 2005 when the amendment took effect: see s 1 and Sch 1 cl 42 and cl 17 of the Migration Litigation Reform Act 2005. The application, made on 19 July 2006, was clearly outside the time prescribed by s 477. Hence, Raphael FM determined that he had no jurisdiction to entertain it.

28 In SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803, it was decided that ss 476 and 477 of the Act operate together to limit the jurisdiction of the Federal Magistrates Court to hear such an application as that presently under consideration. It does not appear that it was argued that s 476 defines the jurisdiction of the Federal Magistrates Court and that s 477, by imposing a time limit upon the manner of its exercise, may not simply be limiting the jurisdiction. I observe that s 486A imposes similar time limits upon an application to the High Court under Chapter III of the Constitution for relief in the nature of constitutional writs. Of course, it does not arise in this matter to address whether s 486A is within power, and if it is not whether s 477 should be construed not as limiting the jurisdiction of the Federal Magistrates Court because the grant of jurisdiction by s 476 of the Act is expressed to be "subject to this section", rather than as subject to Part 8A generally, but as defining improperly the manner of its exercise.

29 In those circumstances, the decision in SZICO [2006] FCA 1803 in my view also leads to the conclusion that the alternative reason for the decision of Raphael FM is also correct.

30 For those reasons, no arguable error has been shown in the decision of Raphael FM, and the application is to be dismissed.

31 That leaves the applicant with his application for special leave to appeal to the High Court from the decision of Edmonds J. As that is his final opportunity to set aside the decision of the RRT, it would be appropriate for him to attend assiduously to it.

32 The application is dismissed. It is unclear whether the application included the Refugee Review Tribunal as a second respondent, and in case it did not, I will add it as a party. The name of the first respondent has since been altered, and I will also substitute the name of the first respondent as Minister for Immigration and Citizenship. The orders are:

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	The applicant appeared in person

Counsel for the Respondent:	P d'Assumpcao

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	12 February 2007

Date of Judgment:	22 February 2007