SZFOG v Minister for Immigration and Multicultural Affairs

11 The basis for Mr Clisby's claims is unclear, since it appears that he never met or spoke with the appellant, but rather had dealt with the appellant's migration agent. The sole basis for his statement seems to be the fact that he had received documents signed by the appellant. 12 For approximately the following 11 months, no further action was taken. However on 24 January 2005, the appellant applied for a review of the Tribunal's decision to the Federal Magistrates Court in Sydney. An amended application was filed in April 2005. On 1 July 2005 the respondent filed a notice of motion seeking that the appellant's application be dismissed as an abuse of process pursuant to Pt 13 r 13.10 of the Federal Magistrates Court Rules 2001. 13 On 26 July 2005, Raphael FM heard the respondent's notice of motion. At that hearing the appellant claimed that he 'had no real understanding of what was happening between himself and the migration agent and the solicitor and that he should therefore have an opportunity of having his case heard': see the judgment of Raphael FM at [5]. His Honour found as follows (at [7]): 'I can see that a man who speaks very little English and comes from part of the former Soviet Union may well have considerable difficulty in communicating with a migration agent whose first language is probably not Slavic and whose second language may be English. I am not prepared to discount the fact that the applicant may have paid this migration agent a very large sum of money or that he may not have received value for those payments.' 14 However, his Honour found at [8]: 'In relation to the application I think it is clear that the bringing of another case in this court seeking review of the same decision of the Refugee Review Tribunal that has already been considered by the Federal Court and voluntarily discontinued is an abuse of process.' 15 His Honour added at [9]: 'This is not the first time the court has had to deal with a problem caused by the alleged fault of a migration agent. It has been made clear by Dowsett J in B41 of 2003 v Minister for Immigration [2004] FCA 30 that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. It may be that if the applicant has been badly served by his migration agent, the Minister will hear sympathetically an application under s 48B of the Migration Act 1958 (Cth) ('the Act'). In the meantime court proceedings relating to the decision must be brought to an end.'

16 There is no suggestion in his reasons that Raphael FM relied upon the statements contained in the affidavit of Mr Clisby to the effect that the appellant was aware of the institution and discontinuance of the Adelaide proceedings. 17 The appellant applied for leave to appeal from the decision of Raphael FM on 2 August 2005. Edmonds J delivered judgment on the application for leave to appeal on 30 September 2005 and granted leave to the appellant: see SZFOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1374. Edmonds J, after considering numerous authorities relating to abuse of process, found that it was arguable that Raphael FM erred in dismissing the appellant's case as an abuse of process when there had been no hearing on the merits. His Honour referred in particular to the fact that, in contrast to the facts in the present appeal, several of the authorities relied upon by Raphael FM involved an issue estoppel: see at [18] of the reasons of Edmonds J.

FINDINGS 18 The decision by Raphael FM to dismiss the appellant's case as an abuse of process was an exercise of discretion by his Honour. Accordingly, I must be guided by the principles expressed in House v The King (1936) 55 CLR 499 in relation to an appeal from an exercise of discretion. In that case, Dixon, Evatt and McTiernan JJ said (at 504-5): 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

19 The appellant's notice of appeal and his submissions relate primarily to the substantive merits of his judicial review application, rather than to the question whether the dismissal as an abuse of process was an error of law, which is the proper question in this appeal. However, the correct issue was squarely raised in the judgment of Edmonds J relating to leave to appeal and has been dealt with in the submissions of the first respondent. In view of the fact that the appellant is unrepresented and does not speak English, and of the importance of the matters in dispute, I consider it appropriate that the Court consider this issue, even though it has not been specifically raised in the notice of appeal. 20 At this hearing, the appellant provided some evidence relating to the reasons for discontinuing the Adelaide proceedings and for the delay in instituting these proceedings. However, whilst I consider the appellant to have been a generally reliable witness, I do not consider that I can take fresh evidence on these matters into account in determining whether his Honour's discretion miscarried. 21 There are two questions of principle which I consider are raised by the judgment of Raphael FM. The first is whether his Honour misinterpreted the authorities in respect of dismissal for abuse of process in determining that the application should be dismissed. The second is the question of whether Raphael FM could properly take into account the fault of the migration agent (if proven) in determining how to exercise his discretion.

Dismissal as an abuse of process 22 The leading High Court authority in respect of abuse of process is the decision in Walton v Gardiner (1993) 177 CLR 378. In that decision Mason CJ, Deane and Dawson JJ said at 392-3: 'Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.' 23 Raphael FM in his decision relied upon authorities relating to dismissal of migration proceedings as an abuse of process: specifically Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133. However, as Edmonds J pointed out in his reasons for judgment on the grant of leave to appeal, this decision (and another decision to which it referred, namely Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10) were both decided in circumstances where a second application to the Federal Magistrates Court had been lodged after the first application had been heard and dismissed by the Court. That is clearly distinguishable from the present case, in which the appellant's application for judicial review has never had a merits hearing, and the first respondent conceded as much. 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503. I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words 'disposed of' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean 'dismissed'. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place. 25 The first respondent refers also to the decision in A42 of 2003 v Minister for Immigration [2004] FMCA 1002, affirmed by Jacobson J in this Court (Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207) and refused special leave to appeal to the High Court by Heydon and Crennan JJ (Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967). In that case, it was decided that it was appropriate to dismiss an application for review as an abuse of process in circumstances where an earlier application for an order nisi had been dismissed by consent (without a merits hearing taking place). 26 I accept that there may be some circumstances in which, despite the fact that no hearing on the merits of the application has occurred, the re-institution of proceedings will be considered an abuse of process. That situation is clearly recognised by each of the decisions in A42 of 2003. However I make two observations about A42 of 2003. Firstly, that case involved a substantially longer and more convoluted litigation history, on which the grounds for dismissal for abuse of process were considerably stronger. In that sense it is in part distinguishable from the present case. Secondly, the existence of cases which suggest that it may in some circumstances be appropriate to dismiss an appeal as an abuse of process where no merits appeal has been heard does not relieve the Federal Magistrate from the requirement to exercise his discretion. 27 I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be 'unjustifiably vexatious and oppressive', the Court also made it clear that this should only occur in an extreme or exceptional case. 28 In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour's reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour (Applicant S503) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all. 29 Accordingly, in my opinion, the exercise of his Honour's discretion was affected by an error of principle.

CONSIDERATION OF CONDUCT OF MIGRATION AGENT 30 There is another aspect of his Honour's decision which I believe warrants consideration. That is the statement by his Honour (reproduced at [15] above) that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. In support of this proposition Raphael FM cited the decision of Dowsett J in B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30. 31 B41 wasa case in which the appellant alleged that he had failed to attend the Tribunal hearing because of advice from his migration adviser that it was not necessary for him to do so. The appellant also alleged that his migration adviser had not passed on copies of letters of invitation to the Tribunal. In that case, Dowsett J held that failures by a migration agent could not be a basis for an allegation that the Tribunal failed to afford the appellant procedural fairness. 32 The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184; SZEYH v Minister for Immigration and Multicultural Affairs and Anor (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker). 33 However, the question under consideration in the present case was of a different nature altogether. The fault of the migration agent was raised not in respect of an allegation of procedural unfairness in the decision of the Tribunal. Rather, it was raised as an explanation for the discontinuance of the proceedings and their subsequent reinstatement. In my opinion, this was a valid consideration for Raphael FM in deciding whether the proceedings were an abuse of process. In answering that question, it was necessary for Raphael FM to determine whether the continuation of the proceedings would be 'unjustifiably vexatious and oppressive'. It seems to me that in making that determination, the reasons for the past conduct of the proceedings were highly relevant. 34 In this respect, I consider this case to be in part analogous with other applications for the Court to excuse non-compliance with procedural rules, such as the granting of an extension of time where an application has not been filed within the appropriate time period. It is not uncommon in these cases for the Court to take into consideration any fault on the part of legal representatives and generally, subject to a requirement of fairness to his or her opponent, a party will not be deprived of rights of access to the Court because of the fault of an advisor. 35 The fault of a migration agent has in fact been taken into account in at least one application for an extension of time in which to file an appeal in this Court: see SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979. In that case, Lander J was satisfied that the applicants were unaware that they had brought proceedings in this Court, and that the failure to file the notice of appeal in time was the fault of his migration agent: see at [51] and [52]. His Honour held that, given those factors, the interests of justice dictated that the applicants should be granted an extension of time. 36 I see no reason why the faults of a migration agent should not similarly be taken into account in an application for dismissal on the grounds of abuse of process. The knowledge and culpability of the appellant in these proceedings is, in my opinion, a material factor in deciding whether the prejudice to the first respondent can be justified in all the circumstances. Of course, any misconduct of a migration agent must be proven. In these proceedings, however, the appellant provided oral evidence of his migration agent's conduct to the Federal Magistrates Court. There are certainly many curious features in the history of these proceedings which appear to be difficult to reconcile with an appropriate standard of behaviour on the part of the appellant's migration agent. Raphael FM was sufficiently concerned by the evidence given by the appellant that he referred the papers to the Migration Agents Review Panel for consideration. Nonetheless, his Honour clearly indicated that he did not consider that this matter had any bearing on his determination that the matter was an abuse of process. In my opinion, this was an error of principle which also justifies the quashing of his Honour's decision.

Reconsideration 37 It is clear from House v The King that, having found that Raphael FM's discretion miscarried, I may re-exercise the discretion if in a position to do so: see the passage reproduced at [18] above. Given that the transcript of the proceedings before Raphael FM is in evidence and based upon his Honour's factual findings contained in his reasons for judgment, I consider that I am in a position to do so. 38 Raphael FM did not make any specific factual finding in respect of the behaviour of the appellant's migration agent. However, as referred to at [36] above, it is clear from his Honour's reasons that he was concerned by the appellant's evidence about the agent. His Honour considered these allegations of misconduct were sufficiently credible to warrant a referral of the file and the transcript to the Migration Agents Review Panel. In my opinion, his Honour's concerns should weigh against the striking out of the appellant's application as an abuse of process. 39 I also consider the fact that the appellant has not had a merits hearing to be significant. This is a factor which, as discussed above, was not fully taken into account by Raphael FM in his consideration. In my opinion, this is also a significant factor weighing against the striking out of the application. 40 A third factor to consider is the appellant's delay in bringing his application for a review of the Tribunal's decision. The current application was filed in January 2005, over 26 months after the Tribunal's decision was handed down. On its face, this period of delay is significant and in some circumstances, with no justification, might be sufficient of itself to warrant a dismissal. However, if the appellant's claims are believed, the delay attributable to the misconduct of the migration agent would account for at least 18 months. Raphael FM did not make any specific findings on the credibility of the appellant. The respondent has pointed to an exchange between the appellant's migration agent and Raphael FM contained in the transcript as follows: 'MIGRATION AGENT: This is as well actually, that's why I don't think it's an abuse of process here because the person was clearly unaware of the failure of his application … HIS HONOUR: He said he was but he's been cross-examined at some length and I'm afraid I don't really quite believe him but I don't know whether he was cheated by the other migration agent or he wasn't and I am going to refer the matter to the MARA people and they can sort it out ...' This statement is ambiguous and no adverse finding is recorded in his Honour's reasons. Further, his Honour clearly believed enough of the appellant's evidence to refer the matter to the Migration Agents Review Panel. Given these circumstances, I do not think the above exchange can be considered determinative, and I consider the appellant should be given the benefit of the doubt. 41 In all of the circumstances, I do not believe that this is a case which warrants dismissal as an abuse of process. Given the allegations of misconduct by the appellant's migration agent, which appear to me, and which evidently appeared to Raphael FM, to have some substance, and given that the appellant has not had the opportunity to have the merits of his appeal heard, I consider that the matter should be allowed to proceed. Accordingly, I will order that the respondent's notice of motion seeking strike out of the appeal be dismissed, and that the matter be remitted to the Federal Magistrates Court for determination. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The appellant appeared in person.

Solicitor for the First Respondent: Sparke Helmore

Date of Judgment: 8 September 2006