BZAR of 2004 v Minister for Immigration
[2005] FMCA 413
•8 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAR OF 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 413 |
| MIGRATION – Review of RRT decision – dismissal of application – principle of res judicata. |
| Judiciary Act 1903 Muin v Refugee Review Tribunal (2002) 76 ALJR 996 |
| Applicant: | BZAR OF 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | BRG718 of 2004 |
| Judgment of: | Rimmer FM |
| Hearing date: | 8 March 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 8 March 2005 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed on 10 December 2004 be dismissed.
That the applicant is not permitted to file any further application in relation to the decision of the Refugee Review Tribunal dated 26 November 2002 and handed down on 19 December 2002 in the Federal Magistrates Court without leave of the Court;
That the applicant pay the respondent's costs of and incidental to the application in accordance with the fixed costs claim under schedule 1 of the Federal Magistrates Court Rules fixed in the sum of $3500, such costs to be paid within 28 days of today's date.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 718 of 2004
| BZAR OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is a Notice of Motion which was filed by the Minister for Immigration and Multicultural and Indigenous Affairs on 14 January 2005 with respect to proceedings that have been brought by the applicant in the Federal Magistrates Court filed on 10 December 2004.
The background in relation to this application is that the respondent request that the Court order the following: that the applicant's application under the Judiciary Act of 1903 and Migration Act of 1958 filed on 10 December 2004 be dismissed and that no further application by the applicant in relation to the decision of the Refugee Review Tribunal, the RRT, dated 26 November 2002 and handed down on
19 December 2002 be accepted for filing without leave of the Court.
The respondent's motion to dismiss is brought on the following grounds. Firstly, that the application is barred because res judicata applies. In the alternative, the application is barred because the Anshun estoppel applies and, thirdly, in the alternative the proceeding is an abuse of process of the Court.
Background
The applicant's application filed on 10 December 2004 relates to a review of a decision made by the RRT on 26 November 2002 which was handed down by that Tribunal on 19 December 2002. This affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.
In this matter, the applicant arrived in Australia on 29 September 2000, and he applied for a protection class XA visa on 20 October 2000. On 23 November, a delegate for the Minister refused to grant the protection visa, and on 18 December 2000 the applicant applied to the RRT to seek a review of the delegate's decision. On 26 November 2002, the RRT affirmed the delegate's decision not to grant a protection visa to the applicant. Reasons were given for that decision which are exhibited to the affidavit of the solicitor, Joseph Lo, filed in support of this application.
On 13 January 2003, the applicant to the Federal Court of Australia in Sydney sought a review of the RRT’s decision and those proceedings were instituted on 13 January 2003. On 21 February 2003, Gyles J transferred the hearing of those proceedings to the Federal Magistrates Court being a Court with concurrent jurisdiction. On 26 June 2003, Federal Magistrate Barnes heard and determined the application and dismissed it. On 10 July 2003, the applicant then appealed Federal Magistrate Barnes' decision to the Federal Court and on 10 September 2003, the Full Federal Court constituted by a single judge, Conti J, dismissed that appeal.
On 2 October 2003, the applicant applied for special leave to appeal the decision of the Full Court of the Federal Court to the High Court of Australia. On 27 September 2004, the applicant discontinued his application for special leave to the High Court. Some weeks after that, on only 6 October 2004, the applicant then applied again to the Sydney Federal Magistrates Court seeking another review of the RRTs decision. Grounds of that review were similar to the grounds which had been relied upon in the earlier review filed initially in the Federal Court and transferred to the Federal Magistrates Court and to which I have referred.
On 25 October 2004, the Minister filed a notice of motion to dismiss further application for review in the Sydney Federal Magistrates Court. That notice of motion was similar to the one which is before the Court now. After the filing of that notice of motion on a date unknown because it is not date stamped, the applicant discontinued the application for review in the Federal Magistrates Court and ended those proceedings in that manner under the Federal Magistrates Court rules. However, a short time thereafter on 10 December 2004, the applicant in Queensland in the Brisbane Federal Magistrates Court filed an identical application seeking a further review of the Refugee Review Tribunal's decision.
Therefore, by way of summary,
·there has been an original application filed in the Federal Court, transferred to the Federal Magistrates Court, heard and determined in that Court, that application was dismissed;
·an appeal to the Full Court of the Federal Court in relation to that decision dismissing the review application, that appeal was unsuccessful and the appeal was dismissed;
·an application for special leave to the High Court which was discontinued;
·an application to the Sydney Federal Magistrates Court seeking a further review of the RRTs decision on very similar grounds which was discontinued after a notice of motion similar to today was filed by the respondent; and
·a further application for review has been made to the Federal Magistrates Court in Brisbane.
When one reviews the grounds relied upon for the review both before the Federal Magistrates Court as determined and appealed, the Federal Magistrates Court as discontinued, and the Federal Magistrates Court in Brisbane, which is now still subsisting and in relation to which this notice of motion is filed by the respondent, all raise similar if not identical causes of action and also the same sorts of issues and facts are sought to be relied upon.
In the application which is now before the Court filed on 10 December 2004, the grounds of the application are that the Tribunal made this decision in bad faith; the Tribunal deprived the applicant of natural justice; the Tribunal did not observe the Migration Act properly and the decision was actual bias; the Tribunal's decision did not reflect any material facts of his claim; the Tribunal gave a decision which was pre-set in the back of its mind; the Tribunal mixed up many facts with this decision which affected the decision; the Tribunal concentrated on particular facts while ignored many others; the Tribunal made up its mind without any inquiry regarding his claim and did not believe with genuine convention both refugees claimed.
When one reviews the evidence of the respondent which includes the original applications as annexed to the affidavit of Mr Lo both in the Federal Magistrates Court as initially heard, and also the Full Court, it is very clear from reading the applications and the decisions that the same cause of action, the same facts, the same issues, are sought to be agitated in these proceedings now before the Court. For example, when one looks at the general application to the Federal Court of Australia in New South Wales - these being the proceedings that were determined after transfer to the Federal Magistrates Court - it says:
“Details of claim 1: the Tribunal failed to make a bona fide attempt to examine the review of the application; that the Tribunal did not consider the current political situation prevailing in Bangladesh where all leading political activists have become targets. The Tribunal inaccurately portrayed the applicant as a low profile political leader but the applicant was the Vice President etcetera. A number of errors have occurred in deciding the fate of the review application. Those matters are simply couched in different words.”
The same matters are sought to be agitated now in these proceedings on this application before the Court. Although the applicant is not here personally before the Court, I propose to take into account a summary of argument which has been put before the Court. It is proper for me to take this into account, because the applicant did appear on the last occasion, and I directed that he file this argument which he has done so on 28 February. It is clear that in the summary of argument the applicant is simply wishing to have a review of the merits of the decision of the RRT agitated in these proceedings.
It is clear that that is identical to the exercise he sought to be undertaken and was unsuccessful in undertaking both in the Federal Magistrates Court and on appeal to the Federal Court of Australia. He raises issues that there have been a change brought about decisions of the High Court and the Federal Court since his matter was reviewed by the RRT and that those matters constitute a new ground of review.
As submitted by the Minister today, those matters have been already dealt with on a number of occasions in decisions of the Federal Court, and those decisions are relied upon in these proceedings by the Minister. In the decisions, the Court has found that the proceedings which are brought on a ground that has been restated by the Full Court are in fact almost identical to the law as it applied before the decisions.
The Minister further raises the fact that reliance on the decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 996 and Lie v Refugee Review Tribunal [2002] HCA 30 do not help the applicant in this case because the Refugee Review Tribunal has not accepted the basic set of facts which the applicant seeks again to agitate. In those two cases there was an agreed set of facts and the decision turned on a completely different ground to that which is now thought to be agitated by this applicant.
It is submitted on behalf of the respondent that clearly the principle of res judicata applies to this application, in essence because the Applicant has had a full determination of the cause of action. He has had that determined unsuccessfully. The Applicant has then sought to have that appealed as he is entitled to and such appeal has been unsuccessful. He sought to have leave of the High Court of Australia to allow him to appeal further and discontinued those proceedings; therefore those proceedings are final.
A final order has been made by the Court in relation to the issues before the Court and the causes of action now again sought to be agitated by the applicant. That is not permissible under the principles of res judicata. This principle provides to a person the right to bring a cause of action before a Court, agitate it fully, have it determined based on the law which applies at the time that the application is determined. They then can appeal such decision if unsuccessful, and appeal it with diligence and to the extent of the appeal process in the country of Australia which this applicant has done.
In essence, what the respondent says the applicant seeks to do before this Court and in this application is to start the process again in relation to the identical cause of action, and that in so doing, the res judicata principle applies as a complete bar to the new claim because the cause of action is extinguished by the first judgment. It has been determined and that the Court does not have a discretion in relation to this matter. It cannot seek to ameliorate the doctrine and how it applies. Simply, this Court does not have the capacity to allow the applicant to start to litigate a matter which has been determined by a final order to its completion of the appeal process.
Findings
I am satisfied in this matter that the doctrine of res judicata clearly applies. Identical cause of action was raised by the applicant not once but twice. Firstly by having it determined to the full extent of the rights of appeal. Secondly, the application was discontinued in the Federal Magistrates Court in Sydney. Within a very short period of time, the applicant has simply come to the Federal Magistrates Court in Brisbane and filed an application which is seeking to raise and agitate the same cause of action. The respondent submits that if that principle does not apply, which I clearly find it does, then indeed the Anshun estoppel principle applies.
I accept that argument, although I do not see it as necessary to determine either the Anshun estoppel principle or the abuse of process arguments, because clearly in my findings res judicata applies.
The Minister seeks that if this application is dismissed, which on the basis of my findings it must be, then there should be an order made which in effect takes the right of the applicant to continue to file further proceedings in relation to this matter. I am satisfied that this Court does have jurisdiction to make such an order.
The Court must be able to order the business of the Court where a person simply will not accept finality of decision. It puts both the Court's resources, and the resources of the respondent, to no good use in making applications which have no basis at law, which fail on a summary dismissal argument and where there is a repeated cause of action that identifies to the Court that the applicant is likely on the past experience to continue to bring such applications to the Court. Clearly this is one of those matters.
Given that the applicant brought almost identical proceedings in the Federal Magistrates Court in Sydney in October, discontinued those proceedings, and then in December of the same year came to Brisbane and filed an identical application in Brisbane, I am satisfied that the facts of this matter establish very clearly that it is highly likely that the applicant, without the Court making the order that is sought by the respondent, will simply keep filing applications using resources of the respondent, and the resources of the Court, to no good purpose on applications which simply have no basis or merit to them.
Accordingly, I make Orders as set out at the commencement of these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate: Alexandra Adsett
Date: 4.04.2005
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