Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: followed
McInnis FM held, at [32], that the application constituted an abuse of process: Further, however, in my view, that [sic] chronology of events giving rise to the application of the doctrines to which I have referred, combined with the dismissal of the application by Selway J in the Federal Court of Australia on 22 August 2003 against the backdrop of what I conclude to be an application foredoomed to failure provides me with an appropriate basis to find, as I do find, that this application is in any event an abuse of process, applying, as I do, the principles set out by the High Court in Walton v Gardiner . In this appeal, the appellant relies upon the following grounds: 1. The Federal Magistrate erred in not finding that the Refugee Review Tribunal (RRT) committed jurisdictional error. 2. The Federal Magistrate erred in not remitting the matter back to the RRT for further consideration. The appellant stated that he would provide further grounds once the decision of McInnis FM was handed down. No further grounds have been filed, however the appellant filed on 4 October 2006 a submission in support of his position, which is Annexure A to these reasons. In addition, this day the appellant filed a written submission dated 6 October 2006, which is annexure B to these reasons. In my view all the matters raised as relevant considerations by the appellant were considered by the Tribunal in its second Tribunal decision. The application the subject of the second Federal Court decision was made under s 39 of the Judiciary Act . In that application the appellant asserted that there was a denial of procedural fairness. The next application made on 24 December 2002 for constitutional relief pursuant to s 75(5) of the Constitution was dismissed by Selway J in the third Federal Court decision. The appellant there relied upon a number of grounds including, again, a denial of procedural fairness. Finally, in my view, McInnis FM also correctly found the proceedings were an abuse of process. The principles relating to an abuse of process are set out in the decision of the High Court of Australia in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 (' Walton ') at 392-3 as follows : 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. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, 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. (citations omitted) In my view it seems clear that the claim to re-litigate the same application for relief as previously is an abuse of process within the meaning of the term as discussed by Mason CJ and Deane and Dawson JJ in Walton . In those circumstances, the appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 24 October 2006 Counsel for the Appellant: The Appellant appeared in person. His friend, S Wignarajah, made submissions on his behalf. Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2006 Date of Judgment: 6 October 2006 ANNEXURE A SUBMISSION I do strongly contend that the learned Judge erred in his failure to rule that the RRT committed numerous jurisdictional errors. And as a consequence I did not receive a fair trial, and thus was deprived natural justice. One of the pillars of my claim that I was persecuted for political reasons and had a substantial and well founded fear for life and limb of my family and me was the threats, emotional stress, physical violence and the attempt to murder me by JVP supporters. It was the failure of the learned Judge in that he erred to rule that the RRT was bound to take cognisance of the political culture of the JVP and this failure resulted in jurisdiction error. If the RRT had taken into consideration the culture of the JVP, they then would not have arrived at the erroneous conclusions about the incident that occurred in 1990 at the Sinhalese Sports Club when I was the chef and threatened that I must delay the function of the President. Please find below the requisite information that will prove the murderous, vicious and bestial nature of the JVP, a left radical party that believes that Sri Lanka belongs only to the Sinhala Buddhist majority and treats other minority communities such as burghers and Catholics as vermin to be eliminated without compunction. I quote; What Robert Oberst wrote in " Current History " vol.91, 1992 in the article " War without winners in Sri Lanka " as a reaction to the reign of terror of the JVP. " The Government countered the JVP with its own reign of terror. In 1988 death squads believed to be made up of off duty police and army personnel and assisted by some UNP supporters removed young people form [sic] their homes at night. The next day the bodies of these youths would be discovered burnt or mutilated. By July 1989 death squad killings had reached several hundreds a week. The violence terrorised villages by targeting the innocent neighbours and friends of suspected JVP supporters." The equal vicious murderous counter measures adopted by the government is a wonderful indication of the danger that this murderous entity pose to civilised society. So heartless are they, no regard for the sanctity of human life that in the 1980s in their reign of terror they compelled many government hospitals totally closed. Doctors and medical staff fled for their lives. And hundreds of patients on life support systems were chased home. The vast majority succumbed even before they reached home. Failure to consider such relevant information led the RRT to erroneously conclude that the incident in 1990 did not occur, and then the RRT moved on to erroneously conclude that my statement of abuse and threat to life did not take place. The learned judge erred in that he did not rule that the RRT did commit jurisdictional error in its failure to take into account this most relevant information, although it was bound to have taken such information into account. One can judge the damage done to me for the RRT concluded that this incident was not plausible because I failed to report this threat immediately to have them arrested by the Security Forces. This is as logical as faulting a chef in the mafia capital in Sicily for not immediately reporting a mafia gangster to the boss, for requiring the chef to delay a function for the politician. The learned Judge erred in that he did conclude that there was no jurisdictional error when the RRT failed to take into consideration relevant information in regard to the incident of the planned ambush when my wife and I were thrown from our motorbike and grievously assaulted. I was bashed, my hand broken, and stabbed in the neck and leg. The RRT erroneously concluded that it was a random criminal attack. It was not a random criminal attack. It was pre planed [sic] and meditated. Exactly at a certain point an empty three-wheeler was pushed into our path late at night at a lonely spot. It was not criminal. We wore jewellery, wristwatches and had cash. None were touched. Where was the criminal intent? Where was the criminal follow up? After we were unconscious I was left to bleed to death. The Judge erred in not concluding that the RRT made an erroneous finding. This error was most damaging as this incident was indisputable evidence of persecution and possible death for our political convictions. When our house was vandalised by a gang in 1997 the Judge erred in his failure to rule that the gang who absolutely thrashed our house, did so for only criminal reasons. The Judge erred in that he did not find that the RRT came to an erroneous conclusion. On the facts it was obvious that it was politically motivated. If the motive was criminal. They would not waste valuable time endangering their safety. In regard to my position being chef at the SSC the learned judge erred in that he concluded that the RRT did not commit jurisdictional error that my position was not a plausible reason for being targeted for political persecution. The SSC was the haunt for UNP politicians, so much so that government security was provided. Presidents and Prime Ministers have their private functions there so often. I was a prominent person moving in the echelons of government power. On these facts the RRT arrived at an erroneous concluded [sic] that I was not targeted for political reasons. In this the Judge erred that the RRT was not bound to take this information into consideration and thus committed jurisdictional error. The learned Judge erred in that he did not conclude the failure to the RRT to take into account the report of the Victoria Foundation of survivors of Torture in Cooperation was jurisdictional error. The report is expressly clear " The applicant was suffering from survivor symptoms of post traumatic disorder and depression. His depression manifest as extreme grief, tearfulness, and feelings of helplessness. He is constantly anxious due to his fear of returning to Sri Lanka. It is my opinion that these symptoms are the direct result of his experiences of persecution in Sri Lanka. " The Judge erred in that he did not consider that the RRT was bound to consider such vital information given by an impartial expert in her field. The RRT arrived at an unreasonable conclusion and the Judge erred in not concluding such conclusion did constitute jurisdictional error. The learned Judge has ruled that I was seeking to re agitate facts previously raised and considered by the RRT. (Page 6). I submit respectfully that I was not re agitating facts but only pleading that on the incidents accepted to have occurred by the RRT, the RRT failed to take them into consideration when bound to do so and thus committed jurisdictional error. The learned Judge ruled (page 8) " That once a [sic] issue has been determined according to law and all rights of appeal have been exhausted that should be an end of the matter. " I believe I was not granted natural justice because the RRT decision was not a decision determined by law, but was erroneous because of numerous jurisdictional errors. I do believe I was denied natural justice in that the Judge erred when he failed to conclude; a) That the RRT committed jurisdictional errors when it failed to take into account relevant information which it was bound to take into consideration. b) The Judge erred in that he failed to conclude in that the RRT committed an error in law that it demanded a standard of proof that was unrealistic, unreasonable, and impracticable. c) The Judge erred in that it failed to conclude that the RRT reached erroneous conclusions unsupported by evidence that was crucial to the final determination. d) The Judge erred in that he did not conclude that the RRT misunderstood the criteria for the grant of a protection visa. The RRT erred because the notion of persecution in appropriate cases involves the single act of oppression. The criteria demanded that there be some significant detriment or disadvantage. I did suffer significant detriment and disadvantage. i.e. Lost a great career, deprived of a lucrative employment in the Maldives, and bashed, stabbed and left to bleed to death. For all the reasons mentioned above I do believe that the learned Judge did err in not concluding that the RRT did commit numerous jurisdictional errors and other errors in law thus deprive me of natural justice. ANNEXURE B Further to the submission I handed over on 3 rd October 06 I wish to hand over information relevant to that submission. I apologise for the inconvenience caused in not submitting this information on that date. I do believe that we did not receive a fair trial because of the bias of the RRT. My wife's GP gave the RRT a letter that mentioned she should not be I quote "questioned under pressure situations as it could make her anxiety level high, resulting in diabetes worse or make her depressed". This was not a statement open to conflicting opinion between doctors. It was not a statement of medical complexity. It was a clear concise and unambiguous statement. Why then did the RRT confirm "in view of the above statement provided only at the hearing and therefore unable to be confirmed with another doctor, in this time frame the applicant was asked very few questions." (Page 10). Why the need to test the veracity of a simple, precise medical statement? We believe the RRT concluded we were dishonest, attempting to cheat and deceive the RRT. We believe that an inaccurate entrenched mind-set of our character and integrity prevented an impartial decision. We believe that the learned Judge erred in that he should have concluded that we therefore did not receive an impartial decision. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1387.html