BZAE of 2004 v Minister for Immigration
[2005] FMCA 379
•14 February, 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAE of 2004 & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 379 |
| 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
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Samananda v MIMA (2000) FCA 1192
SZBJM v MIMIA [2004] FCA 404
SZDCJ v MIMIA [2004] FCA 1500
Muin v Refugee Review Tribunal (2002) 190 ALR 601
| Applicants: | BZAE of 2004 and BZAF of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG700 of 2004 |
| Delivered on: | 14 February, 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 14 February, 2005 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| The Applicants 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 applicants not file any further application in relation to the decision of the Refugee Review Tribunal dated 12 August, 2002 and handed down on 3 September, 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 applicants 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 |
BRG 700 of 2004
| BZAE of 2004 & BZAF of 2004 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is the hearing of a notice of motion filed on 11 January, 2005 by the respondent seeking an order that these proceedings be summarily dismissed, that the applicants pay the respondent's costs of and incidental to the application and that the applicants not be permitted to file any further application in relation to the decision of the Refugee Review Tribunal made on 12 August, 2002 and handed down on
3 September, 2002 without the leave of the Court.
The applicants apply to this Court by way of their applications filed on 2 December, 2004 for relief under section 39B of the Judiciary Act1903 in respect of a decision of the Refugee Review Tribunal made on 12 August, 2002 and handed down on 3 September, 2002.
It is apparent from the material before me that the applicants, who are husband and wife, are citizens of Bangladesh. They arrived in Australia on 17 September, 1999 and on 29 October, 1999 they lodged joint applications for Protection (Class XA) visas with the Department. The applications were considered by a delegate of the Minister and on 3 December, 1999 that delegate refused to grant protection visas to the applicants. On 31 December, 1999 the applicants applied for review of that decision.
As I have already indicated, the decision of the Refugee Review Tribunal was handed down on 3 September, 2002. From that decision, the applicants applied for review to the Federal Court of Australia. They filed their application in the Federal Court of Australia, New South Wales District Registry in Sydney on 26 September, 2002.
In that application, they sought the following orders:
(1)an order setting aside the decision of the Tribunal
(2)an order remitting the matter to the Tribunal for determination according to law and in the light of existing situation of my country of origin where I fled from and is not willing to return;
(3)an order that the respondent pay my costs of these proceedings;
(4)such further order or orders, declarations as the court sees fit.
That application came before the Federal Court of Australia in Sydney on 5 February, 2003. On that day, Hill J delivered a decision dismissing the application for review. Although the grounds of the application were not set out in it, his Honour identified in his judgment the five grounds upon which the applicants then relied before him for the orders that they sought in the application. His Honour identified those grounds as:
(1)that the applicant would be in jeopardy if he were required to return to Bangladesh as the merits of his claim had been ignored by the Tribunal, which had not acted in good faith;
(2)that he was deprived of natural justice;
(3)that the Tribunal failed to consider the applicant's claim in the light of the existing political situation in Bangladesh;
(4)that the Tribunal had not observed and carried out the procedures required by the Migration Act 1958 and the Migration Regulations 1994;
(5)that the decision involved an error of law, either being the incorrect interpretation of the applicable law or an incorrect interpretation of the facts.
None of the grounds before His Honour were particularised in any way. His Honour determined that the applicants sought nothing more than a merits review of the Tribunal's decision. His Honour dismissed the application.
From that decision the applicants appealed to the Full Court of the Federal Court of Australia in Sydney. Their notice of appeal was filed on 24 February, 2003 and the grounds of the appeal were as follows:
(1)Procedures that were required by the Act to be observed in connection with the making of the decision were not observed;
(2)According to the Migration Act, there was no evidence or other material to justify the making of the decision. In the decision of my case, the Tribunal has not followed it. RRT was prejudiced and biased.
(3)The decision was not authorised by this Act or the Regulations.
The applicants sought an order allowing the appeal, setting aside the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law.
The decision of the Full Court was handed down on 13 August, 2003. The Court was constituted by the Chief Justice, Heerey and Finn JJ. They dismissed the applicants' appeal. They determined that Hill J had made no error in his approach to the matter and that, even if His Honour had not considered some of the arguments raised by the applicants, there was nonetheless no material before Hill J that would have allowed him to make the findings that the applicants wished him to make.
From that decision of the Full Court, the applicants sought special leave to appeal from the High Court of Australia. The application for special leave was filed on 17 December, 2003 and the grounds upon which special leave was sought (as set in the amended application for special leave) are as follows:
The issue in this case is that section 61 of the Australian Constitution imposes an inexcludable due process requirement for the conduct of hearing by the Refugee Review Tribunal in Alae case, Gleeson CJ, Gummow and Kirby JJ indicated that the obligation of affording natural justice is a statutory implication rather than a common law approach. The Tribunal failed to fulfil the requirements. There are many cases in the Federal Courts where these issues have been raised.
The application for special leave appended, as it must, a draft notice of appeal. The grounds set out in the draft notice of appeal were as follows:
(2)the Court erred in failing to hold that the decision of the Refugee Review Tribunal made 12 August 2002 involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, section 476(1)(c) of the Migration Act 1958.
Summaries of argument were filed by each party to the application for special leave. The Chief Justice and Heydon J dismissed the application for special leave on 10 September, 2004.
The applicants, however, were not dissuaded by their singular lack of success. On 30 September, 2004 they filed another application in the Federal Magistrates Court of Australia at Sydney pursuant to the Judiciary Act1903. They sought from the Federal Magistrates Court at Sydney the following orders:
(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 any further 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 applicants' costs;
(5)such other orders as the Court sees fit.
The grounds of the application were set out therein. It is necessary for the purposes of these reasons to recite them in full. They are:
(1)that the Tribunal exceeded its jurisdiction in failing to accord the applicants procedural fairness as required under section 424A(1) and section 418(3) of the Migration Act;
(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 v Commonwealth of Australia [(2003) ALR 24] re Minister for Immigration and Multicultural Affairs; ex parte Miab [(2001) 206 CLR 1];
(4)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 and/or lack of procedural fairness.
The application came before Smith FM on 8 November, 2004. That seems to have been the first return date of the application. The application was dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001. The applicants were ordered to pay the Minister's costs fixed in the sum of $3,000. I pause to note that rule 13.10 of the Federal Magistrates Courts Rules 2001 deals with disposal by summary dismissal. It is the rule pursuant to which the notice of motion presently before me is being pursued by the Minister.
Specifically, rule 13.10(c) enables the court to order that a proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceeding, if it appears to the court that the proceeding or claim for relief is an abuse of process of the court. I can only conclude from the formal record of Smith FM’s order made on 8 November, 2004 that His Honour determined, for reasons that were argued before him, that the application fell within the rule and it was appropriate to dismiss it on that basis. There is no evidence of any appeal from that decision.
The applicants then filed on 2 December, 2004 the application that is presently before me. In that application, they seek the following relief.
An order of or declaration to redirect the applicants' claims to the RRT for further consideration, and to advise the Tribunal to make a further consideration of this matter.
An order that no action is taken to remove the applicants from Australia while the decision is pending.
An order for costs and any further orders that this honourable Court may deem appropriate.
The grounds of the application are as follows:
(1) The Tribunal made his decision in bad faith.
(2) The Tribunal deprived me of the natural justice.
(3)The Tribunal did not observe Migration Act 1958 properly. The Tribunal decision was actual bias.
(4)The Tribunal's decision did not reflect the material facts of my claim.
(5)The Tribunal has given a decision which was pre-set in the back of its mind.
(6)The Tribunal mixed up many facts with this decision, which affected the decision.
(7)The Tribunal concentrated in particular fact, while ignored many other facts in this condition.
(8)The Tribunal made up his mind without any inquiry regarding my claim, and he did not believe my genuine Convention-based refugee claim.
(9)My judicial review application before the Federal Magistrates Court is late. I refer to support my review application recent High Court case, plaintiff S157/2002 v Commonwealth of Australia.
The Minister argues in support of her notice of motion that the cause of action that the applicants wish to pursue before me is res judicata; that is, there is a cause of action estoppel that prevents this application from being carried forward. It should be dismissed now.
Alternatively, if I am not satisfied that it is res judicata then, nonetheless, the application should be dismissed because of an estoppel of the type dealt with by the High Court of Australia in Anshun v Port of Melbourne Authority (1981) 147 CLR 589 operates against the applicants.
Alternatively, the Minister says that these proceedings are an abuse of process, and should be dismissed on that basis.
I am satisfied that the doctrine of res judicata applies to the proceedings before me. There is little doubt, I think, that the present trend of authority in Australia is that those principles apply in judicial review proceedings such as the present. 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.
It is right to say, as the Minister does, that the decision of Merkel J in Samananda has been adopted, applied and followed in a number of Federal Court decisions and certainly in a number of Federal Magistrates Court decisions.
The issue to be determined is whether, as a matter of substance rather than form, the rights that the applicants wish to agitate before me have been the subject of a decision in previous proceedings. It is for that reason that I have gone to some trouble to set out at length the relief sought by the applicants in each of the proceedings that they have commenced, and the grounds upon which they have relied for that relief.
Although stated in different ways in different applications, the applicants have always applied for, in substance, the same relief. They have always sought that the decision of the Refugee Review Tribunal be set aside, and that the matter be remitted to the Tribunal to be re-heard or determined again. That was what they asked of Hill J and continued to ask of the Full Court and of the High Court. That is what they asked of Smith FM late last year, when they commenced proceedings in Sydney. That is what they ask of me. The relief that they seek now is the same as the relief sought in each of the previous proceedings.
The grounds upon which they seek that relief have also been, it seems to me, the same. Although expressed in different language in the various documents to which I have referred, it is plain that the applicants' complaint can be broadly placed into three categories.
The first is a complaint about the decision made by the Tribunal on the facts; that is, they are unhappy about the findings made by the Tribunal. It is, of course, impermissible in this application to pursue a merits review.
The second is that the applicants were denied natural justice before the Tribunal. It seems to me that this ground has not been fleshed out in any substantive way until this application before me, although it has been alluded to in earlier proceedings. On 10 February, 2005 the applicants filed a document which they call "Applicant's Argument for Competency." In that document, which does not bear paragraph numbers, the applicants identify the decisions in Muin v Refugee Review Tribunal (2002) 190 ALR 601 as providing the legal and factual foundation for their case that they were not afforded procedural fairness. They say that, in their case, the Minister's office did not send to the Refugee Review Tribunal the Part B documents described in the delegate’s decision and that they were misled by a letter written to them by the Tribunal in the same terms as that written in Muin's case.
There is, of course, no evidence before me that the Part B material (if indeed there ever was any Part B material before the Delegate or referred to by him or her) was not sent to the Refugee Review Tribunal. Moreover, there is no evidence before me that letters were sent to the applicants in the same terms as those that were so central in Muin's case. But even if it was established by the applicants that the same problems that befell Muin befall them in this case, it seems to me that the res judicata that is relied upon by the Minister would be a complete answer to that argument. It is not to the point, I think, to say that it is only now that the procedural fairness point relied upon by the applicants has been fully identified. The issue of procedural fairness was raised in the previous proceedings and ruled upon.
Moreover, the applicants in their proceedings before Hill J and arguably in their proceedings before Smith FM have been in a position to agitate their argument that they were not afforded procedural fairness in the Muin sense. The decision in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 was delivered by the High Court some time before the determination of the applicants’ appeal by the Full Court of the Federal Court, and certainly before the determination by the High Court of the applicants' special leave application. So, too, the decision in Muin was delivered before the matter was dealt with, it seems, by the Full Court of the Federal Court and the High Court on the special leave application. All of those decisions were certainly delivered before the judgment of Smith FM.
Even if it was an answer to a claim of res judicata, nothing has changed in either the facts or the law since this matter was determined by Hill J, the Full Court of the Federal Court of Australia, the special leave application before the High Court, and the application before Smith FM. Of course, that there has been, or might have been a change in the law since a final decision between parties was given, does not operate as an invitation to commence fresh proceedings to re-litigate the same issues. That was made clear by Madgwick J in the Federal Court in SZBJM v the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404.
I am satisfied that the cause of action that the applicants wish to agitate before me has been agitated before, once in the Federal Court of Australia and then again in the Federal Magistrates Court of Australia at Sydney. On the first occasion, the matter was determined against the applicants and they exhausted entirely their rights of appeal. On the second occasion, the matter was dealt with on a summary basis. I can see no basis in the material whatsoever for me to entertain this application further. It is plainly the subject of a res judicata. I will, therefore, dismiss the application on that basis.
The Minister also applies for an order that prevents the applicants from commencing any further court proceedings without first obtaining the leave of the Court. It is now settled by the Full Court of the Federal Court of Australia that this Court has power to make such an order: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500. In that case, Jacobson J was sitting as the Full Court of the Federal Court of Australia determining an appeal from the Federal Magistrates Court at Sydney. Although His Honour's ultimate finding on the appeal did not turn on the issue of whether or not the Federal Magistrates Court had power to make an order which prevented an applicant from filing further proceedings without leave of the Court, His Honour dealt with that issue and determined that the Court had such a power. His Honour gave little guidance, however, as to the circumstances in which that power might be exercised.
I do not in these reasons intend to perform a full exploration of the circumstances in which this Court might exercise that power. It is plain however, that in this case the applicants have pursued proceedings to review the decision of the Refugee Review Tribunal to their fullest. There can be no reason, it seems to me, to permit the applicants to file any further proceedings in relation to that decision without the leave of the Court. If I were not to make the order, I harbour some concern that these applicants will continue to vex the respondent with further unmeritorious proceedings. They have demonstrated a propensity to do so.
In those circumstances, I will order that the applicants not file any further application in relation to the decision of the Refugee Review Tribunal dated 12 August, 2002 and handed down on 3 September, 2002 without the leave of the Court first obtained. Further order that any application for leave be, in the first instance, without notice to the Minister.
RECORDED : NOT TRANSCRIBED
I order that the applicants pay the respondent's costs of and incidental to the application fixed in the sum of $3500. I order that those costs be paid within 30 days of today's date.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S Haysom
Date: 31 March 2005
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