BZAD of 2004 v MIMIA
[2005] FMCA 410
•14 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAD of 2004 v MIMIA | [2005] FMCA 410 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – summary dismissal. |
Migration Act 1958 (Cth)
Anshun v the Port of Melbourne Authority (1981) 147 CLR 589
Samananda v MIMA (2000) FCA 1192
SZDCJ v MIMIA [2004] FCA 1500
Muin v Refugee Review Tribunal (2002) 190 ALR 601
| Applicants: | BZAD of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG 701 of 2004 |
| Delivered on: | 14 February 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 14 February 2005 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondent: | Mr Lo |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed on 2 December, 2004 be dismissed;
That the applicant not file any further application in relation to the decision of the Refugee Review Tribunal dated 14 November, 2002, and handed down on 10 December, 2002, without the leave of the Court first obtained;
That any application for leave pursuant to order 2 hereof be, in the first instance, without notice to the Minister;
That the applicant pay the respondent's costs of and incidental to the application fixed in the sum of $3,500, such costs to be paid within thirty (30) days of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ701 of 2004
| BZAD of 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
On 2 December 2004, the applicant in these proceedings filed an application in this Court seeking relief under s.39B of the Judiciary Act 1903. In the application, he claims:
(1)an order of or declaration to redirect the applicant's claims to the RRT for further consideration and to advise the Tribunal to make a further consideration of this matter;
(2)an order that no action is taken to remove the applicant from Australia while the decision is pending;
(3)an order for costs and any further orders that this honourable Court may deem appropriate".
The grounds of his application are:
(1)RRT did not require the comment regarding the "all of my claims".
(2)The Tribunal made his decision in bad faith.
(3)The Tribunal deprived me of the natural justice.
(4)The Tribunal denied the evidentiary proof of my claim.
(5)The Tribunal's decision did not reflect the material facts of my claim.
(6)The Tribunal has given a decision which was preset in the back of its mind.
(7)The Tribunal mixed up many facts with this decision which affected the decision.
(8)The Tribunal concentrated in particular fact while ignored many other facts in this condition.
(9)The Tribunal made up his mind without any inquiry regarding my claim and generalised my claim.
(10)Also, he did not believe my genuine convention-based refugee claim.
To that application, the Minister filed a notice of motion on 11 January 2005 seeking an order that the application be dismissed summarily, an order for costs and seeking an order that the applicant not be permitted to file any further application in relation to the decision of the Refugee Review Tribunal dated 14 November 2002 and handed down on
10 December 2002 without the leave of the Court.
The background to this application is as follows. The applicant, who the Refugee Review Tribunal accepted was a citizen of Bangladesh, arrived in Australia on 12 July 2000. On 11 August 2000, he lodged an application for a Protection (Class XA) visa with the Department. On 29 September 2000, a delegate of the Minister refused to grant him a protection visa. On 26 October 2000, the applicant applied for a review of that decision. The Refugee Review Tribunal made its decision on 14 November 2002 and handed it down at Sydney on
10 December 2002.
From that decision, the applicant applied to the Federal Court of Australia for a review. The application was filed on 6 January 2003. In it, the applicant detailed his claims as follows:
(1)The Refugee Review Tribunal was acted on bad faith in relation to the applicant's claims and ignored relevant materials which affected its decision. The applicant provided relevant supporting documents to establish his protection claim but the Tribunal did not consider. Therefore, the applicant relies on the following grounds:
(a)The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or Regulations to be observed in connection with the making of the decision were not observed.
(b)The Refugee Review Tribunal decision was affected by an error of law and jurisdictional error.
(c)There was no evidence or other material to justify making the decision.
(d)The Refugee Review Tribunal Member made its decision in a bad faith.
(e)There has been a constructive failure of jurisdiction by the Tribunal Member as, in his decision of 14 November 2002, failed to address the correct legal question committed to him by not applying himself to all the issues he was required to consider in determining the matters before him.
(2)Therefore, the applicant seeks a review of the decision of the Refugee Review Tribunal under section 39B of the Judiciary Act 1903 (Commonwealth) and Migration Act 1958 (Commonwealth).
The application was heard by Jacobson J in the Federal Court of Australia on 26 May 2003. His Honour dismissed the application. The applicant sought to challenge the factual findings of the Refugee Review Tribunal but Jacobson J dismissed those grounds of review.
Secondly, the applicant contended that the circumstances of his case were similar to those which the High Court found in Muin v Refugee Review Tribunal (2002) 190 ALR 601 to amount to a denial of procedural fairness. His Honour dealt with that claim in his reasons for judgment and dismissed it.
The third ground argued before Jacobson J was that the Tribunal ignored relevant evidence and its findings of fact were in the face of or against the weight of the evidence and that its errors in that regard were so grave as to constitute either jurisdictional error or a breach of the rules of procedural fairness. Again, Jacobson J considered those matters and rejected them.
From his Honour's decision, the applicant appealed to the Full Court of the Federal Court of Australia. The grounds of his appeal were:
The Tribunal's ignoring of relevant evidence and its findings in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness.
He sought orders consistent with the application before Jacobson J.
The Full Court dealt with the appeal on 4 November 2003. The judgment of the Full Court was delivered by Spender J with whom Hely and Bennett JJ agreed. The appeal was dismissed.
From that decision, the applicant made an application for special leave to appeal to the High Court of Australia. That was filed on
19 November 2003 and again, the grounds of that application were:
The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act. The Tribunal's decision and its findings was contradicting independent evidence constitutes jurisdictional error, error of law and breach of procedural fairness.
The draft notice of appeal appended to the application for special leave repeated the grounds in the application for special leave and added nothing further. Summaries of argument were exchanged but, ultimately, the application for special leave was dismissed by Kirby and Heydon JJ on 10 September 2004.
On 27 September 2004, the applicant commenced proceedings in the Federal Magistrates Court of Australia at Sydney, purportedly pursuant to s.39B of the Judiciary Act 1903. In that application, the applicant claimed:
(1)An order in the nature of certiorari setting the purported decision of the Tribunal aside;
(2)An order of prohibition to restrain the respondent from giving or any effect to the purported decision;
(3)An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law;
(4)An order that the respondent pay the applicant's costs;
(5)Such other orders as the Court sees fit.
The grounds of the application were:
(1)that the Tribunal exceeded its jurisdiction in failing to accord the applicant procedural fairness as required under section 424A(1) and section 418(3) of the Migration Act 1958
(2)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(3)that the Tribunal is bound to accord procedural fairness in reaching its decisions and a failure to accord procedural fairness will lead to jurisdictional error which is not protected from review by the privative clause (S157/2002, the Commonwealth of Australia [(2003) ALR24] re Minister for Immigration and Multicultural Affairs; ex parte Miab ([2002] 206 CLR1]);
(4)a Refugee Review Tribunal fall into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the applicant if he returned. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal or error of law or lack of procedural fairness.
That matter was listed for its first return date at 2.15 pm on 11 October 2004. On 8 November, 2004, the applicant filed a notice of discontinuance and thereby discontinued his application before the Federal Magistrates Court of Australia at Sydney.
The respondent in this application says that there is a res judicata that operates against the applicant. He has already litigated an application under the Judiciary Act1903 on the same grounds that he now wishes to pursue before me and he ought not be permitted to do that.
Alternatively, it is said that an estoppel of the type discussed by the High Court of Australia in Anshun v the Port of Melbourne Authority (1981) 147 CLR 589 operates against the applicant. Alternatively, it is argued that the application is an abuse of process.
I am satisfied that the principles of res judicata have application to judicial review applications such as this. There is little doubt about that. The decision of Merkel J in Samananda v Minister for Immigration and Multicultural Affairs (2000) FCA 1192 provides ample authority for the proposition that res judicata has a role to play in judicial review proceedings. His Honour there collects the relevant authorities and I will not repeat them
The question I have to determine is whether the cause of action that the applicant pursued before the Federal Court of Australia in Sydney is the same, in substance, as that he now wishes to agitate before me.
The applicant has filed a document on 10 February 2005 which he entitles, "Applicant's Argument for Competency". In that document, he sets out his reasons for pursuing this application. They are, from my understanding of that document, the same arguments that he placed before Jacobson J and the Full Court of the Federal Court of Australia and the High Court of Australia on the application for special leave.
This is, it seems to me, a clear case of res judicata. There is plainly an estoppel that operates against the applicant in these proceedings. The application must, it seems to me, be dismissed.
This court has power to make the order sought by the Minister that the applicant not be entitled to commence any further proceedings in respect of the relevant decision without the leave of the Court: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500. This is an appropriate case to make such an order. The applicant has commenced and concluded one application under the Judiciary Act 1903 and has exhausted all of his rights of appeal in respect of it. He has commenced a second application in Sydney in the Federal Magistrates Court, although discontinued that application before it was disposed of, and he now pursues a third application under the Judiciary Act 1903 before me, on the same grounds.
It is appropriate, in my opinion, to make an order that the applicant not file any further application in relation to the decision of the Refugee Review Tribunal dated 14 November 2002, and handed down on
10 December 2002, without the leave of the court. I will make a further order that any application for leave in the first instance be without notice to the Minister.
RECORDED : NOT TRANSCRIBED
I will order the applicant pay the respondent's costs of and incidental to this application fixed in the sum of $3500. Further, those costs be paid within 30 days of today's date.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S Haysom
Date: 30 March 2005
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