SZGGS v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an unusual application. It has been drafted as application for leave to file proceedings pursuant to O 21 r 5 of the Federal Court Rules. It comes against a background of an applicant who was refused the grant of a protection visa on 21 July 1997 by delegate of the Minister. That decision was affirmed by decision of the Refugee Review Tribunal made on 13 July 1999, and constitutional writ relief was sought by the applicant against the tribunal's decision from Einfeld J in mid‑November 1999. His Honour refused relief concluding as follows: "The case has no merit at all and never had any chance of succeeding." 2 Despite that, the applicant has instituted, on his own counsel's count, 15 separate proceedings in the Federal Magistrates Court, this Court or the High Court of Australia, seeking to challenge in one way or another, decisions not to grant him a protection visa. Part of his litigious history was to join unsuccessfully the class action known as Muin v Refugee Review Tribunal (2002) 190 ALR 601. Ultimately, that proceeding, so far as it concerned the present applicant, was dismissed by consent by Emmett J on 30 April 2004. Following that, the applicant filed an application in the Federal Magistrates Court on 17 May 2004, seeking a review of the same decision of the tribunal but that application was discontinued later in August 2004. 3 Next the applicant sought leave to appeal out of time against the 1999 decision of Einfeld J. Bennett J heard that application at which the applicant was represented by counsel: Applicant S1746 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1591. Her Honour set out the grounds the applicant had relied on in his affidavit: Applicant S1746 of 2003 [2004] FCA 1591 at [14]. Those grounds included that the tribunal breached the rules of procedural fairness by failing to give the applicant an opportunity to comment, first, on information and, secondly, on materials on which it relied in its decision, thus making an error of procedural fairness. Her Honour recorded that those grounds were referred to in a draft notice of appeal but the applicant's counsel had said that they were not pressed. However, she noted that the two relevant grounds that I have articulated, which bear a resemblance to ones based on the tribunal's claimed failure to comply with s 424A and its obligation under that section, were not particularised and that nothing had been advanced before her to establish a breach of the rules of procedural fairness. 4 Bennett J also held that the same could be said in respect of a new argument, that the applicant had put forward before her that there was some mistake in his statutory declaration before the tribunal and dismissed the application. Her Honour noted that the tribunal's 1999 decision had referred to a number of exchanges between both the applicant and his advisor and the tribunal in respect of a number of documents. In the end, her Honour formed the view that there was no prospect of success in an appeal based on the third ground. The High Court dismissed an application for special leave to appeal from the decision of Bennett J on 27 April 2005. 5 On 10 May 2005, the applicant filed an application in the Federal Magistrates Court again seeking judicial review of the 1999 decision of the tribunal. Next, on 18 May 2005, the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294. Subsequently, Driver FM dismissed the applicant's latest application for review of the 1999 decision of the tribunal, saying that the applicant had chosen to conduct his various proceedings in a way which led his Honour to the view that he had embarked upon a course of conduct intended to occupy as much judicial time as possible so as to extend his presence in Australia. 6 Emmett J dismissed an application for leave to appeal from the decision of Driver FM on 7 September 2005. He said that when he asked the applicant, who appeared for himself, to indicate to the court the nature of his complaint about the tribunal's decision, the applicant had said that the tribunal did not realise his problem properly and had not tried to realise his problem. Emmett J noted that the applicant's submissions did not attempt to address Driver FM's reasons for dismissing his proceeding as an abuse of process. The applicant made over five pages of written submissions to Emmett J. His Honour said those submissions appeared to raise issues with the factual findings made by the tribunal. Emmett J found that references to authorities in the High Court and this Court did not have any bearing on the issues before him. He pointed out that the grounds specified in the draft notice of appeal before him included: "(4) Recent Federal Court of Australia decision SAAP MIMA [sic]. I will file amendment of the grounds after receive (sic) the reasons for judgment." 7 I infer that this was a reference to the decision (SAAP 228 CLR 294) which the High Court had handed down earlier that year. Emmett J said that those grounds did not make any sense. He concluded that on the material before him, the proposed appeal could not possibly succeed and there would be no utility in granting leave to appeal. 8 The applicant then began proceedings seeking to review the decision of the delegate made in July 1999. Scarlett FM dismissed that application in November 2005, finding that it did not disclose a reasonable cause of action. He held it was both vexatious and an abuse of the process of the court. 9 The applicant then sought leave to appeal and that came before me. After the applicant initially failed to appear, I granted him leave to set aside my earlier decision, dismissing the application, heard it and determined that, similarly to my earlier decision, the application was without substance: SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224 and [2006] FCA 378. Heydon J dismissed an application in the High Court for leave to appeal out of time. 10 After that, the applicant sought a further review by the tribunal of the delegate's decision. In October 2006, the tribunal found it had no jurisdiction. Raphael FM summarily dismissed an application to challenge that decision in November 2006, saying that the application was doomed to failure because the tribunal's decision was unimpeachable. Moore J dismissed an application for leave to appeal with costs and ordered that the registry of this court not accept any further applications by the applicant without prior leave of the court: SZGGS v Minister for Immigration and Multicultural Affairs [2006] FCA 1753. His Honour's order is the reason why the present application is before me. Subsequently, the applicant abandoned a further challenge to Moore J's orders because of what he said was pressure from the Department of Immigration. 11 On 28 April 2008, the day before the applicant's bridging visa E subclass 50 was due to expire, he began proceedings in the Federal Magistrate's Court before Scarlett FM seeking once again to challenge the 1999 decision of the tribunal. In his affidavit in support of that application sworn on 24 April 2008, the applicant referred to the fact that his bridging visa was due to expire the next day, after which he said arrangements were to be made by the department for his departure. He referred to some of the litigious history to which I have made reference above. The affidavit noted that the High Court had given its decision in SAAP 228 CLR 294 on 18 May 2005. The applicant asserted there that he had had no opportunity to raise the point in SAAP 228 CLR 294, before the High Court had handed down its decision. 12 That assertion was obviously incorrect because he did have an opportunity. The mere fact that he may not have asserted some point about that decision did not mean that he could not have done so. He asserted in the affidavit before Scarlett FM that he had not had the benefit of legal representation after November 2004 and, given the change in the law brought on by the decision in SAAP 228 CLR 294, combined with the facts, that he had very limited financial means to seek legal assistance and had been in detention in Villawood in 2003. He submitted that these matters were special circumstances which existed to permit him to agitate this new ground of appeal which had not been unreasonably omitted from all the proceedings he had brought in the past. 13 In his 2008 affidavit, he also said that the requirements of notification in writing identified in SAAP 228 CLR 294 had not been met because, he asserted, certain particulars were only put to him orally by the tribunal in 1999 as the reason or part of the reason for affirming the decision of the delegate, and he now sought to raise this point. 14 In his affidavit in support of his application for leave to commence these proceedings, the applicant also asserted that he should be given a proper opportunity to answer the particulars of adverse information put to him orally by the tribunal during the hearing. He did not identify in any of the material before me anything he would have said in writing that he did not say orally. 15 More importantly, the applicant's affidavit demonstrates that the tribunal did put its concerns to him orally. That is, no doubt, why Einfeld J considered the application before him in 1999 to have had no merit. Nonetheless, in SAAP 228 CLR 294, the High Court held that the tribunal needed to put such concerns to an applicant for review in writing, so as to enable him or her to comment on them. The tribunal's failure to do so in 1999 is said to be a jurisdictional error which, because of what are asserted to be the special circumstances of the applicant's case, he should now be allowed to put before the court for consideration. 16 It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at a trial. If it were not so, the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Their Honours went on to point out, applying University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, that it is elementary that a party is bound by the conduct of his case. They said: "Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." 17 In my opinion those considerations powerfully reinforce the prima facie impression reached by Scarlett FM that these proceedings were the plainest abuse of the process of that court and would, if allowed to be filed here, be the plainest abuse of the process of this court. There is no explanation in the affidavit in support of the application before Scarlett FM to explain the applicant's delay in putting any case about SAAP 228 CLR 294 in the course of any proceedings he has brought since 18 May 2005. Indeed, the elliptical reference in his draft notice of appeal to which Emmett J referred suggests that he was then aware of, at least, the force of the decision in SAAP 228 CLR 294, albeit that he incorrectly attributed the decision to the Full Court of this Court, which had dismissed SAAP's application. 18 If this proceeding were allowed to be instituted in the Court, I am of opinion that right-thinking people would consider that the administration of justice would be brought into disrepute. I am of opinion that this applicant has brought so many proceedings seeking to challenge the unsuccessful rejection of his application for a protection visa that right-thinking people would correctly conclude that he will not accept any decision of the courts against him unless and until, as he hopes, they set aside the tribunal's decision: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. 19 The applicant, who is now represented by counsel, asserts that there are special circumstances which have the effect of eschewing a consequence of an estoppel of the kind raised in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. In my opinion, the circumstances of this case suggest the contrary. The applicant has not put forward any explanation of what he had in mind in the proceedings before Emmett J when referring to a decision concerning SAAP, whether of the Full Court of this Court or of the High Court. 20 In SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 (at [37]-[38] and [55]-[58] per French J; with whom Tracey J agreed at [114]; and [83]-[88] per Allsop J) the Full Court applied the principles in which the court may protect itself against abuse of its processes. As French J pointed out (SZAJB [2008] FCAFC 75 at [37]): "One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings. … The powers of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing." (footnote omitted) 21 French J referred to Reichel v Magrath (1889) 14 App Cas 665 at 688 per Lord Halsbury LC; see also Walton 177 CLR at 392-393 per Mason CJ, Deane and Dawson JJ to whose remarks I referred earlier. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed that the grant of constitutional writ relief was a matter of discretion. They pointed out that the authorities establish that, among other reasons, such relief can be refused, "if no useful result could ensue, [or] if the party has been guilty of unwarrantable delay." 22 The merits of the applicant's case have been examined by a number of judges including Einfeld J, Bennett J, Driver FM and Emmett J in the proceedings to which I have referred. The circumstances show that this applicant has sought continually to bring proceedings since the decision in SAAP228 CLR 294, without having explained why he has now, only just before his bridging visa is to expire, instituted the current proceedings rather than at some earlier time. This is indicative of the abuse which these proceedings would be were I to permit them to be brought. I am not satisfied by the applicant's assertion that he was not aware of the consequences of SAAP 228 CLR 294, having regard to the way in which he presented grounds of appeal to Emmett J. I am not satisfied that he now has any arguable case by the virtue of the mere fact that he was unable to articulate to Emmett J any intelligible basis upon which the tribunal failed to comply with requirements in whatever decision concerning SAAP to which the notice of appeal before his Honour referred. 23 Many of the instances in the draft notice of appeal before me consist of examples of information that the applicant claimed the tribunal ought to have put him under s 424A, but amount to nothing more than challenges to country information, or matters which could not have been information within the meaning of the section, at least as articulated in the grounds. As examples, the draft grounds assert that the tribunal had put orally to the applicant at the hearing in 1999 that: · there was independent evidence to the effect that the Awami League had made the independence of the judiciary part of their platform and had taken steps to ensure that independence. This information appears prima facie to be what is known as, "country information" within the accepted understanding of s 424A(3)(a); · a document on which the applicant relied to suggest that he had been detained for a month, if it were genuine, led the tribunal to believe that he had been released on bail and this his matter had been dealt with in a fair handed manner. Again, this does not seem to me to be any information that falls within requirements of notification in writing under s 424A(1); · there was independent evidence to the effect that fraudulent documents were readily obtainable through a number of sources. That is classically information within s 424A(3)(a); · if he were absconding on such serious charges as those on the records on which he had relied, the authorities would have had his name on a list at departure points, such as airports. That seems to me to be a classic inference of fact which need not have been put in writing to the applicant under s 424A. But, in any event, it was a challenge to his assertion, presumably, that he was a wanted man when he left the country. 24 It is not arguable, in my opinion, to suggest that matters of commonsense, such as these, were required by s 424A to be put in writing. There may or may not have been other matters that the applicant wishes to raise now, which could have been the subject of consideration by the Federal Magistrates Court in earlier proceedings, had he put them properly earlier. However, I am of opinion that it would be an affront to justice to permit this applicant to raise these matters at this time. As Scarlett FM said, this was a proceeding which had no merit whatsoever. I agree with his Honour's finding that the applicant is now trying to delay his removal from Australia by this further application. 25 In my opinion, these proceedings would be on their face, vexatious and an abuse of the process of this court, were they allowed to be filed: see O 46 r 7A. Leave to file them should be refused. 26 I am of opinion that the applicant should pay the costs of the first respondent on an indemnity basis. The proceedings had no merit, whatsoever, and should never have been instituted. Regrettably the papers were not brought by a registrar, before they were filed under O 46 r 7A, to a judge who would have been able to decide in chambers that they were an abuse on their face and should not have been filed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.