Applicants A42 of 2003 v MIMIA [2005] HCATrans 967 (18 November 2005)

--

Applicants A42 of 2003 v MIMIA [2005] HCATrans 967 (18 November 2005)

Last Updated: 24 November 2005

[2005] HCATrans 967

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S104 of 2005

B e t w e e n -

APPLICANTS A42 OF 2003

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 2.03 PM

Copyright in the High Court of Australia

MR R.T. BEECH-JONES: If the Court pleases, I appear with my learned friend, MS K.C. MORGAN. (instructed by Gilbert & Tobin)

MS M.N. ALLARS: May it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

HEYDON J: Yes, Mr Beech-Jones.

MR BEECH-JONES: Your Honours, this application raises for consideration whether the Federal Magistrates Court has become somewhat over-enthusiastic, in our submission, in summarily dismissing proceedings and in characterising them as an abuse of process. We would submit that, consistent with what we would submit is orthodox principle, the power to dismiss for an abuse of process is one that should only be exercised with caution and it was not open to be exercised in a case such as this where, we would submit, on the face of the decision that was challenged, there was a reasonably arguable, or perhaps strongly arguable, case of jurisdictional error.

To develop that, could I just briefly take your Honours to the reasons of the learned Federal Magistrate which are in particular at page 87 of the application book. In the middle of the page his Honour has set out the grounds of the application under the Judiciary Act that had been filed by my client and, even allowing for the fact that she was self-represented, in our respectful submission, it is quite clear in the middle of page 87 that she had raised a contention that there was error of law on the part of the Tribunal in its failure in shorthand terms to deal with what could be called a Khawar point, namely that the Convention nexus between the persecution she feared as a claimed member of a social group constituting women and the harm she feared was to be provided by “the discriminatory inactivity of State authorities”.

Over the page his Honour deals with the submissions that have been provided by the Minister in support of the summary dismissal application. In the middle of paragraph 14 his Honour just notes a contention that the evidence before the Tribunal in this case:

unlike that in Khawar did not suggest a systematic failure of the state to provide protection for reasons of the applicant’s membership of a social group.

His Honour notes that and then in paragraph 17 is in effect his Honour’s reasons for its summary dismissal. There are two parts. We would emphasise what we say is critical to the overall approach, which is the second-last sentence where his Honour says:

The substantive application does not raise any issue that indicates that the RRT decision in 1998 was infected by jurisdictional error.

His Honour, we would submit, has put it in terms that may justify a finding of abuse of process but it is premised on there being that the correctness of the proposition the application does not raise any issue that indicates the RRT decision. That finding would have to be interpreted as not so much that the application did not raise the issue but that a review of the Tribunal’s decision reveals that such a contention was not even arguable on its face.

The balance of the paragraph deals with questions that appear to be relevant to delay and the fact that she had pursued other recourse. The two other relevant matters that she had pursued, one was an order nisi application in this Court that had been dismissed by consent and the other was that she had attempted to lodge a further application for a protection visa. Of itself we would submit that none of those matters could ever amount to an abuse of process.

HEYDON J: But is it not an abuse of process if you have a decision of the Tribunal on 1 July 1998, then there is another application to the Minister – we can put that on one side – then, instead of going from the Tribunal to the Federal Court, proceedings seeking an order nisi are started in this Court and remitted to the Federal Court and then terminated by consent. Is not the application we are now considering an abuse of process judged in reference to the proceedings before Justice Emmett which were dismissed by consent? There is an attempt twice to reagitate the same complaint, namely error, on 1 July 1998.

MR BEECH-JONES: Except, your Honour, that the dismissal of the order nisi, we would respectfully submit, did not create any res judicata or issue estoppel.

HEYDON J: It did not have to. It is an abuse of process to constantly vex courts and opponents by applying for the same relief, even though there was no dismissal on the merits.

MR BEECH-JONES: It may be, your Honour, but, with respect, that is not really the basis of his Honour’s decision and, for want of a better – it may be to repeatedly do it when it rises to the level of vexing your opponent but in this case there was simply one occasion where an order nisi had been dismissed with not much of an explanation of the circumstances in which that occurred.

HEYDON J: Is it not also an abuse of process if you lose on 1 July 1998 and there is an exceptionally expeditious procedure through the Federal Court, which of all courts in the country hears appeals quickly, to elect not to take that route but a variety of other routes? Here we are seven years later.

MR BEECH-JONES: Your Honour, the fact of delay is, we would clearly accept, a matter that could, when taken with other matters, lead to a finding of abuse of process. What was undertaken here though, we would submit, was a finding that there was an abuse of process principally because it was thought that the substantive application did not raise any issue that indicates the Tribunal decision was infected by jurisdictional error. If that finding was correct, then the other matters taken with it certainly could amount to an abuse of process. If that finding was not correct, then we would submit the fact of delay, the fact that one earlier proceeding had been terminated but not on the merits would not justify a finding that what was being brought here constituted an abuse of process.

Could I just take your Honours briefly to the Tribunal decision to seek to make good the proposition that there was at least on the face of it a strongly arguable case of jurisdictional error. At pages 8 to 9 of the findings section of the Tribunal’s reasons – and I will come back to what we know about what her claim was – at the bottom of page 8 the Tribunal commences its findings. It does not appear to make a finding one way or another whether it accepted the applicant’s claims concerning whether her father was or was not upset by her actions in marrying without permission and what harm may befall her. It just deals with it on the basis that even if that is true, it does not give rise to a well-founded fear for a Convention reason. At the top of page 9 it then notes that even if she is harmed by her father or other members of the family, that:

is motivated by the fact that he expended money on her travel to and education in Australia that she did not pursue and she did not agree to marry with his consent. Her father’s threats are very much related to her as an individual and not for reason of her membership of any social group. Similarly, any difficulties she may face with other family members are not for a Convention reason but because they are upset by her decision to marry.

Then there is a reference to that part of her claim which involves her facing “social ostracism from the wider community”.

HEYDON J: Is that point that is made in the next sentence an alternative ground for supporting the Tribunal’s decision, namely that India is a big country and ostracism in one village can be avoided by going to some other part of the country?

MR BEECH-JONES: The relocation test, as it is known, your Honour, at least in the decisions of the Full Court of the Federal Court level, involves the consideration of a wide number of circumstances concerning a person’s ability to relocate. We would respectfully submit that is not an alternative basis; that is in fact dealing with a separate claim on her part. What we submit is that what the Tribunal has done is said, “Insofar as you claim fear from members of your family, I do not consider that is Convention related”. Then the next part is saying, “To the extent you claim a fear of social ostracism from the wider community, that doesn’t amount to persecution”, but not, “You can avoid the harm from your family by moving somewhere else in India and if you move you may be socially ostracised but that won’t amount to persecution”.

What we respectfully submit is missing, bearing in mind we are talking at a summary dismissal level, is a consideration that, having got to the point at line 17 that there was harm, that she was at least arguably a member of a social group, that the harm she feared from her father, at least the father’s motivation, did not provide a Convention nexus, that the possibility that there would be insufficient protection from the Indian State and that that level of inactivity would be due to her membership of a social group and in this case her status as a woman.

That, we would submit, is something that, for want of a better phrase, cries out from the decision. There may be arguments another way. I should take your Honours briefly to what is in the decision as to her claims. That is at pages 4 to 5. On page 5 at about line 12 there is a reference to what was set out in her written submissions, that is her fear of what may befall her if she marries against her parents’ wishes. Then at line 28 there is a reference to her claim that in her written submissions she was:

a member of a social group namely Indian women but does not add any factual information.

I am sorry, that was page 4. Then over on the top of page 5 there is a reference to what she did know – this is recounting what she told the Tribunal in an oral hearing, that:

she had no contact with women’s groups in India and she [k]new little about them . . . She said she would be ostracised by her family, elders and her brothers should she return to India. She said the police in India would not protect her without a “donation” and that whoever paid them the most got service from them.

CRENNAN J: Was that the totality of the evidence in relation to the State protection issue?

MR BEECH-JONES: Your Honour, in terms of the evidence, can I just say that raises what I might call a wrinkle. Your Honour may recall from your Honour’s recent experience in the Federal Court the document known as the court book, there was a court book prepared. It had her visa application form in it and it had the country report referred to at the bottom of page 51. It is very unclear whether that was before the Federal Magistrate – sorry, it was before him, but whether it was, for want of a better phrase, in evidence or not in evidence at the time of the summary dismissal.

Now, there has been a practice whereby it is referred to, but sometimes people do not formally seek to tender it. The advice we received from my friend’s solicitors was it was not tendered but it was “before”. So, to answer your Honour’s question, in her visa application form she did make a reference to women being disadvantaged and we have actually set the quote out in our summary of argument at page 114 of the application book. At line 34 she was asked:

“Do you think the authorities of that country can and will protect you if you go back? If not, why not?”

And she replied:

“Women are burdened with restrictions they are not free to take any type of decisions”.

And then above that we have set out a reference which was in the US State Department report which was before the Tribunal. It referred to:

“legal and societal discrimination against women; extensive societal violence against women”.

I should also for completeness ask your Honours to go back to page 5 because at the bottom of page 5 and over to page 6 there is a discussion of that report in the Tribunal’s reasons. There is a reference to the representation of women throughout government. At the bottom of the page there is a reference to domestic violence in the context of dowry disputes. At line 15 on the next page there is a reference to the system of laws which are there to protect the rights of women and the fact that there are thousands of grassroots organisations. The difficulty is that the Tribunal never made any finding about any of this.

So there is smidgens of material around about endemic domestic violence, at least in the context of dowry disputes, and also material suggesting that there are protections for women. She has made a claim that
women, as a rule, are not protected. But if your Honours would go back to pages 8 and 9, your Honours would search in vain for any finding of any level of protection or, if protection was not available, why it was not available. That, we would respectfully submit, suggests a strong case of jurisdictional error and, we would respectfully submit, is quite to the contrary of a conclusion of his Honour the Federal Magistrate who concluded that the substantive application does not raise any issue that indicates that the RRT decision in 1998 was infected by jurisdictional error.

Your Honours, to return to what your Honour Justice Heydon put to me at the beginning, what we respectfully submit is the position, what was before his Honour, was a case that was almost ready to go because the court book was prepared. There had been one earlier instance where an order nisi, which in and of itself does not create rights, had been dismissed by consent. There was delay, but delay can always can go to relief. In fact, that is often perhaps more traditional in cases like this. There was on its face a clearly raised ground of judicial review, quite respectable in the way it was pleaded, and on a review of the Tribunal’s decision that ground had a lot to commend it.

We would respectfully submit it could not be concluded, in those circumstances, that what occurred here was an abuse of process. Leaving aside the not insignificant, we respectfully submit, injustice to my client, it does reveal perhaps an over-enthusiastic approach to a summary dismissal, a matter that is often treated with a degree of caution. For the sake of completeness, I should add, your Honours, we would say that the error in Justice Jacobs’s judgment, which is after all the judgment we seek to appeal, is to be found at page 102 of the application book at line 17 where his Honour says:

In my opinion, the decision of the Federal Magistrate is not attended by sufficient doubt for the application for leave to appeal to be successful.

We would respectfully submit it was attended by sufficient doubt and it was clearly so. Unless there is anything further, your Honours, those are my submissions.

HEYDON J: We need not trouble you, Ms Allars.

In our opinion the case is not a suitable one to revisit the principles affecting the dismissal of proceedings as an abuse of process and we think there are insufficient prospects of successfully establishing a jurisdictional error were special leave to be granted.

Do you have anything to say about costs, Mr Beech-Jones?

MR BEECH-JONES: No, your Honour.

HEYDON J: The application is dismissed with costs. Thank you.

AT 2.22 PM THE MATTER WAS CONCLUDED