Applicant A87/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 20

FEDERAL COURT OF AUSTRALIA

Applicant A87/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 20 APPLICANT A87/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No SAD 173 of 2004 FINN, DOWSETT & SELWAY JJ ADELAIDE 25 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 173 OF 2004

BETWEEN: APPLICANT A87/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, DOWSETT AND SELWAY JJ

DATE OF ORDER: 25 FEBRUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs excluding the costs of the respondent's Notice of Objection to Competency. 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 173 OF 2004

BETWEEN: APPLICANT A87/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, DOWSETT AND SELWAY JJ

DATE: 25 FEBRUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This in form is an appeal against two separate decisions of two judges of this Court. For the reasons we give below we will treat it as relating only to a decision of Lander J given on 15 July 2004 which dismissed the appellant's application on the ground that it constituted an abuse of process. That abuse of process was that the appellant, a citizen of Bangladesh, had previously challenged in this Court a decision of the Refugee Review Tribunal ("the Tribunal") refusing to grant him a protection visa. That proceeding – NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 42 – was dismissed by Wilcox J because it disclosed no basis upon which to grant relief to the appellant. 2 In the proceeding under appeal Lander J applied the principle established in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. His Honour held that the matters raised in the proceeding before him could have been complained of in the proceeding before Wilcox J. In consequence, because no special circumstances warranted departure from the Anshun principle: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]; he considered the proceeding brought before him was an abuse of process. In so doing and recognising that the appellant was unrepresented in the proceeding before Wilcox J, his Honour considered matters which might have established special circumstances even though the appellant had not sought to make a case of special circumstances as such. 3 It is well accepted that a decision dismissing an application as an abuse of process is a final one for the purposes of s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth): see Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 at 38. In this respect a proceeding dismissed as an abuse of process probably differs from one dismissed as being frivolous or vexatious or as disclosing no reasonable cause of action. Having the character of a final order, leave to appeal is not necessary. Anomalously, the appellant has not appealed against this order. Nonetheless we will address its correctness below. 4 When one turns to the substantive issue that the appellant seeks to raise, it seems to amount to no more than that he considers Lander J was incorrect in finding that the Tribunal did not comply with the provisions of s 424A of the Migration Act 1958 (Cth). Because his Honour was satisfied that the proceeding before him was an abuse of process, he simply did not have to consider the substance of the particular claim based on s 424A that the appellant proposed to raise before him. Nonetheless, Lander J dealt with that matter. 5 The appellant's complaint was that the Tribunal did not ensure that he understood why five decisions of the High Court which were referred to by the Tribunal were relevant to his case. Those decisions, we would note, were referred to in the Tribunal's reasons as part of the standard recitation of cases that had considered the definition in Article 1A(2) of the Refugees Convention. Lander J dealt with the appellant's contention in the following terms: "In my opinion, the RRT is not under an obligation to bring to the attention of any applicant the authorities which the RRT may rely upon for the purpose of its consideration of the applicant's status as a refugee or otherwise. Moreover, the RRT is not under an obligation to explain to the applicant why it considers that any particular authority might be relied upon for affirming the RRT decision for either of the purposes referred to in s 424A(1). The information is not information specifically about the applicant and so is not required to be given under s 424A(3). In my opinion, the application, which has been brought by the applicant, is entirely without merit and has no prospects of success. In those circumstances, the respondent's notice of motion has to succeed on that ground as well." 6 His Honour was clearly correct in the view he took that the Tribunal did not have to disclose and explain the five High Court decisions. In our view those decisions were not, relevantly, "information" for the purposes of s 424A. They provided the statements of legal principle to be applied to cases where a person claims to be a refugee. 7 Equally his Honour's decision to dismiss the proceeding before him as an abuse of process was unexceptionable. We agree with his Honour's conclusion that the circumstances attracted the Anshun principle and that there were not special circumstances where justice requires the non-application of that principle: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242. 8 We dismiss the appeal and order that the appellant pay the respondent's costs excluding the costs of the Notice of Objection to Competency. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Dowsett and Selway.

Associate: Dated: 25 February 2005

Appellant appeared in person.

Counsel for the Respondent: Mr K Tredrea

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 22 February 2005

Date of Judgment: 25 February 2005