SZBRB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court: SZBRB v Minister for Immigration [2007] FMCA 1093. The matter was called outside the court this morning and there was no appearance by the appellant. I adjourned for 40 minutes in order that the appellant could have an opportunity to appear lest there be any difficulties caused by the current disruptions to movements within the central business district of Sydney caused by the meeting of the Asia-Pacific Economic Co-operation Forum. In addition the solicitor for the first respondent, Ms Burnett, has sought to telephone the appellant on her mobile telephone number but the telephone went to the appellant's message bank system. 2 The proceedings were listed today at the request of the appellant. They had originally been listed for hearing on 30 August 2007. On 28 August 2007 the appellant sent a letter to the registrar informing her that she would be unable to attend on the listing on 30 August because it was the anniversary of her grandmother's death and the appellant was required by reasons of her religious observances to attend to commemorative services on that day. The registrar informed her that provided she would agree to the matter being stood over to this morning at 9.30 am I was prepared to grant her the adjournment. The registrar sent an SMS message was sent to the appellant's mobile telephone number on 29 August 2007 that the hearing would be adjourned to today if she agreed. The registrar's notes on the court's file indicate that the appellant confirmed that that was acceptable to her. 3 The registrar wrote on 29 August to the appellant at her address given as her address for service in her notice of appeal confirming that the hearing would be listed this morning at 9.30am in lieu of the previous listing on 30 August. In addition on 29 August the first respondent's solicitors sent a letter confirming the adjourned time and date of the hearing to both the address for service and the appellant's address notified on the foot of her letter of 28 August seeking the adjournment. 4 I am satisfied that the appellant had full notice of the adjourned hearing time and date. In those circumstances, Ms Burnett, who appears for the Minister, has asked that I dismiss the appeal pursuant to my powers under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the failure of the appellant to attend at the hearing today. However, I am of opinion that I should dismiss the appeal as an abuse of the process of the court for the following reasons. 5 The history of this matter is important. The appellant arrived in Australia on 8 June 2002. On 11 October 2002, she made an application to the Minister for a protection visa which was refused by a delegate of the Minister on 30 October 2002. The appellant then applied to the Refugee Review Tribunal for a review of the delegate's decision. 6 On 25 August 2003, the tribunal made its decision which it handed down on 18 September 2003 to affirm the delegate's decision. In that decision, the tribunal identified the claim which the appellant had sought to make in giving her oral evidence to it as being that she faced embarrassment and a loss of face if she returned to India because her family believed her to have acquired a permanent residence in Australia. The tribunal accepted that the appellant might well suffer feelings of humiliation and shame if she returned to India, but observed, undoubtedly correctly, that that was completely unrelated to any claim she could make for a protection visa. Her second claim to the tribunal was that she feared that if she returned to India, her parents would pressure her to get married. She had claimed that her parents had a man in mind, but she did not wish to marry him. She did not claim or suggest that she came to any actual harm at the hands of her parents or anyone else because of her reluctance to marry or that she feared any actual harm from anyone because of that. The tribunal accepted that she may have felt pressured by her parents to marry, but was not satisfied that that was persecution within the meaning of the Refugee's Convention. 7 The tribunal observed that the appellant's oral evidence did not disclose or point to any instances of serious harm or conduct capable of constituting persecution which she had encountered in the past in India. It followed, ineluctably, that the tribunal was not satisfied she was a person to whom Australia had protection obligations under the Refugee's Convention. 8 The appellant then applied in October 2003 to the Federal Magistrates Court for constitutional writ relief against the decision of the tribunal. At that stage, she was represented by a solicitor. The appellant and her legal adviser failed to appear at a directions hearing on 26 February 2004, before the Federal Magistrates Court, and a registrar of that court dismissed the application. The appellant then filed a notice of appeal to this court. A directions hearing occurred before Lindgren J who adjourned the matter to 21 April 2004 for hearing. In the meantime, on 20 April 2004, the appellant filed an application effectively seeking reinstatement of her application in the Federal Magistrates Court on the basis that her solicitor had not informed her of the need to attend on 26 February 2004. 9 On 21 April, Lindgren J noted that the parties agreed that the appeal should be dismissed and dealt with a contested application for costs. He ordered that the appeal be dismissed: SZBRB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 529. 10 Next, on 28 April 2004, Raphael FM dealt with the application to set the aside the previous order of dismissal made by the registrar. He dismissed it: SZBRB v Minister for Immigration [2004] FMCA 285. He said that the reason for his decision was that it seemed to him, in all the circumstances, that the appellant's claim for review of the tribunal's decision was hopeless and that it was not in the interests of justice to reinstate it: SZBRB [2004] FMCA 285 at [5] and [10]. In my opinion, his Honour was amply justified in that view. There was no basis upon which the appellant could have demonstrated any error in the findings of the tribunal because her claims could not have been regarded as ones giving rise to any entitlement to a protection visa, having regard to the tribunal's unchallenged findings of fact about what her claims were. 11 Next, the appellant filed a notice of appeal to this court from Raphael FM's decision but subsequently filed a notice of discontinuance on 24 June 2004. 12 She began fresh proceedings in the Federal Magistrates Court on 22 August 2005, seeking review of the decision made by the tribunal on 25 August 2003. Smith FM dismissed that application as an abuse of the process of the court, as it plainly was: SZBRB v Refugee Review Tribunal [2005] FMCA 1955 at [4]. He also made an order that the appellant make no further application for review of the tribunal's 2003 decision or that of the delegate from whose decision the application for review before the tribunal had been taken without prior leave of the Federal Magistrates Court on the basis of the abusive nature of the proceedings then before him: SZBRB [2005] FMCA 1955 at [24]. 13 The appellant filed an application for leave to appeal from that decision which came before the Chief Justice who dismissed it: SZBRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 565. He said that he had endeavoured to point out to the appellant that the law did not allow matters to be re‑litigated once they had been decided and in any event there seemed to be no basis for concluding there was any relevant error on the part of the tribunal. Black CJ had earlier said in his judgment that when matters that have already been dealt with come before the court again, as happened there, the court was likely to strike them out as an abuse of process: SZBRB [2006] FCA 565 at [9] and [2]. 14 On 5 September 2006 the appellant filed what purported to be a further application for review before the tribunal. In her covering letter she noted that what she was doing was to 'appeal against the primary decision again'. She asked that the tribunal 'have a fresh look into my appeal this time'. At that stage she made the following assertion: 'I believe earlier at the time of review the tribunal did not consider the information that was referred in section B of the primary decision.' 15 Later she wrote a letter to the tribunal accepting that she had been properly notified of its previous decision handed down on 18 September 2003. That was plainly the case since she brought the proceedings seeking to set it aside which I have described above. However, in that letter she raised a new claim. She asserted that in October 2003 she had entered into a same sex relationship with another woman whom she regarded as her partner. She claimed that conditions in India were such that she would 'be killed both psychologically and physically by the superstitious Hindu people for my love and affection towards a same sex'. She purported to invoke s 416 of the Migration Act 1958 (Cth) to support the jurisdiction of the tribunal to consider her case again. 16 On 31 October 2006 the tribunal found that it did not have jurisdiction in the matter. It referred to the fact that while changed circumstances could be a basis on which the Minister might permit lodgement of a second protection visa application under s 48B of the Act it did not provide any legal basis for the tribunal to accept a second review application or to reconsider the delegate's decision. The tribunal referred to the decision of Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 355-356 [30]. There Gleeson CJ, McHugh, Gummow and Hayne JJ had said: 'It would be inconsistent with the scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate made on 11 October 1995, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.' 17 The appellant then applied to the Federal Magistrates Court for constitutional writ relief against the 2006 decision of the tribunal. Emmett FM refused the application: SZBRB v Minister for Immigration [2007] FMCA 1093. Her Honour carefully reviewed the grounds of appeal. They were: · the appellant had been denied natural justice on both bases of the natural justice hearing rule, namely, that she had not been given a fair hearing and the tribunal was either actually or ostensibly biased; · the tribunal had failed to entertain her appeal in contravention of s 416 of the Act; · the tribunal did not comply with s 424A of the Act. 18 Her Honour noted that no evidence had been filed by the appellant. She said that a fair reading of the tribunal's decision did not disclose any pre-judgment on the part of the tribunal and rejected the allegation of bias. She noted that s 422B of the Act stated that the provisions of Pt 7 Div 4 of the Act amounted to an exhaustive statement of the natural justice hearing rule and that the appellant had not alleged before her any breach of natural justice or procedural fairness other than the allegation of bias. Accordingly she dismissed that ground of appeal. 19 Her Honour characterised the ground alleging a contravention of s 416 of the Act as 'misconceived'. In my opinion she was unarguably correct to do so. She found that the tribunal had already discharged its function under the Act to review the delegate's decision. The ground of appeal alleging a breach of s 424A of the Act was misconceived, as her Honour correctly, regarded, in my view, because the tribunal simply found it did not have jurisdiction as it was bound to do. 20 In the notice of appeal to this court the appellant's grounds were as follows: (1) The tribunal made an error of law and failed to exercise a proper procedure in relation to the decision on the review of the appellant's protection visa application. (2) The tribunal mixed up her previous review application and did not take into her account her change of circumstances and that Emmett FM had missed the key legal issues in reviewing the application. (3) Emmett FM had not considered all the legal issues applicable to her case and she had been denied natural justice by both the tribunal and the Federal Magistrates Court. (4) The tribunal did not provide procedural fairness to the appellant because it did not act in accordance with the provisions of the Refugee Convention. (5) The tribunal denied the appellant natural justice because the tribunal had been biased actually or ostensibly. 21 So far as the matters raised in the grounds of appeal were dealt with by Emmett FM to the extent they raise any articulate or intelligible ground, her Honour was completely correct in her disposition of them for the reasons she gave. To the extent that those grounds complain about her Honour's decision they are utterly without substance. 22 In my opinion those grounds of appeal are devoid of any merit. The appeal is an abuse of the process of the court. It is plain from the appellant's behaviour and her litigious history that she will continue to make unfounded and unjustifiable applications to the court which seek to re-litigate the decision that has already been given on the merits of her original claim for constitutional writ relief. Moreover, she has brought a hopeless application in the present case by reason of the High Court's decision in Thiyagarajah 199 CLR 343. This Court has power to prevent this misuse of its procedures and process. The invocation of its jurisdiction in this repeated fashion by making hopeless applications and appeals is calculated to bring the administration of justice into disrepute among right thinking people: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. 23 In my opinion this appellant should be prohibited from bringing further proceedings in the court without leave of a judge in relation to the decisions of the delegate and the Refugee Review Tribunal the subject of her repeated failed applications. 24 For these reasons I am of opinion that the appeal should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.