BZAS of 2004 v Minister for Immigration
[2005] FMCA 464
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAS of 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 464 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – summary dismissal – res judicata – Anshun estoppel. |
Migration Act 1958 (Cth)
Anshun v Port of Melbourne Authority (1981) 147 CLR 589
Applicant S442 of 2002 v the Minister (2003) FCAFC 28
Somanader v MIMA (2000) FCA 1192
Wong v MIMIA (2004) 204 ALR 722
| Applicant: | BZAS of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG719 of 2004 |
| Delivered on: | 22 March 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 22 March 2005 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Bickford |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed on 10 December, 2004 be dismissed;
That the applicants pay the respondent's costs of and incidental to the application fixed in the sum of $2,900, such costs to be paid within thirty (30) days of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 719 of 2004
| BZAS of 2004 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This is an application filed by the Minister for Immigration and Multicultural and Indigenous Affairs to dismiss summarily an application filed in this Court pursuant to s.39B of the Judiciary Act1903 (“the principal application”). The Minister is the respondent to the principal application. By the principal application, the applicant seeks an order that a decision of the Refugee Review Tribunal made on 6 October, 2002 and handed down on 31 October 2002 be set aside and the matter remitted to the Tribunal for rehearing.
The background to the Minister's application is as follows.
The applicant is a citizen of Bangladesh. He arrived in Australia on
28 May 1999 on a temporary business visa. On 8 July 1999, he made application for a protection visa. A delegate of the respondent refused that visa on 16 September 1999, and on 18 October 1999 the applicant made application to the Refugee Review Tribunal for a review of the delegate's decision. That matter went to a hearing before the Tribunal on 27 March 2002, but on that day the Tribunal granted the applicant an adjournment of the proceedings because of what the Tribunal describes in its reasons as his "psychosis” at the time. The matter returned to the Tribunal on 2 July 2002, at which time the applicant appeared together with an adviser, and the Tribunal, the adviser and the applicant were all of the view that the applicant was "completely lucid".
Before the Tribunal, the applicant claimed that he was likely to suffer persecution if he returned to Bangladesh by reason of his political opinion and his religion. He claimed to have an association with a minor political party in Bangladesh and to have converted from Islam to Christianity. In support of his claims that his family were subject to persecution, he presented to the Tribunal a number of documents. Ultimately the Tribunal rejected his claims, determined that most of the documents upon which he relied were not authentic and, to use the words of Callinan J in a subsequent application for constitutional writs, suffered findings that were "positively" against him.
It was not simply a case that the applicant had failed to make out his claims on the balance of probabilities, but, rather, the Tribunal formed a positive view that his claims were false. The Tribunal made its decision on 6 October 2002 and handed it down on 31 October 2002.
On 27 November 2002, the applicant applied to the Federal Court of Australia at Sydney for judicial review of the decision of the Refugee Review Tribunal. The details of his claim were as follows:
(1)The decision by the Tribunal is not based on documentations; rather, the decision is based on assertions. The decision by the Tribunal is not justifiable.
(2)The applicant is a member of a marginalised Christian Community from Bangladesh and is subject to oppression by the mainstream Muslim Community, and the level of oppression has extended to its highest degree after a changeover of political power in October 2001. The Tribunal failed to consider this truth.
(3)The Tribunal apparently denied a number of documents by psychiatrists in Australia without any authority.
(4)The applicant denounced Islam and converted to Christianity. The applicant was baptised in Bangladesh. The Tribunal denied these consequences without any valid reasons. The Tribunal made a jurisdictional error in this review.
(5)The Tribunal did not take bona fide attempts in relation to this review. The Tribunal unreasonably exercised its power. The Tribunal raised question the spelling of Dhaka. The Tribunal was not aware that Dhaka was written many decades as "Dacca".
The application came before Branson J on 25 February 2003. The application was dismissed. Her Honour said this at paragraph 16 of her reasons for judgment:
As the respondent has pointed out in his written submissions, it is apparent that the applicant was unsuccessful before the Tribunal because of the view that the Tribunal took of the facts and in particular because of its finding that the applicant was not credible and his claims and his supporting documents were fabricated. Findings of matters of fact of this kind are matters for the Tribunal and not for this Court, provided, of course, that the Tribunal's findings were reasonably open to it. In my view, the findings in this case were reasonably open to the Tribunal.
From the dismissal of his application, the applicant appealed to the Full Court of the Federal Court of Australia. The grounds of that appeal were as follows:
(1)The Honorable trial judge failed to consider the strong possibility of the applicant's persecution upon return to Bangladesh due to his political affiliations with the Jatiya Party and his denouncing Islam religion and converted into Christianity. The RRT did not make any queries about the reality of documents submitted by the applicant. The Honorable trial judge did not take it into consideration.
(2)The Honorable trial judge did not consider a number of particularised errors were occurred by the decision of the RRT, and the honorable judge did not make details in relation to set aside the decision of the RRT.
(3)The decision of the RRT was not based on documents. The Honorable Court did not take it into consideration.
(4)The Tribunal did not make the decision on the basis of documentation submitted by the review applicant. The Honorable judge did not take it into consideration.
(5)The prevailing situation in Bangladesh was also not considered by the honorable judge.
The appeal came before Black CJ, Heerey and Finn JJ. In dismissing the appeal, their Honours said:
5 The remainder of the appellant's written submissions seek to characterise what are in truth matters going to the facts as questions of jurisdictional error. We can see no such error and the primary judge was correct in concluding that the appellant was really seeking merits review notwithstanding that he sought to use legal terminology apt to describe judicial review.
6 As has been pointed out many times, it is the Tribunal that has the function of determining the merits of an application for a protection visa, not the Court. Section 476 of the Migration Act 1958 (Cth) provides that an applicant may apply for judicial review on limited grounds and these do not encompass the factual matters the appellant complains about.
The applicant applied for special leave to appeal to the High Court of Australia on 5 September 2003. He sets out in his application for special leave the grounds upon which he says special leave ought to be granted. Those grounds do not seem to add anything to the matters raised in his application before Branson J or his appeal before the Full Court.
The application for special leave was heard by the High Court on 10 September 2004, by Kirby and Heydon JJ. At that hearing, Mr Hegedus, a barrister, appeared for the applicant to assist him. The application for special leave to appeal was dismissed. In doing so, the High Court said:
In our view, there are no prospects of success in this appeal. The conclusions reached by the Tribunal were open to it on all of the evidence. There is no detectable error of law or jurisdiction. The Federal Court was correct to so hold. The applicant asked specially to be relieved from an order for costs in favour of the Minister on the basis of poverty. However, the usual order should be made. Whether it can be enforced is quite another matter. Special leave is accordingly refused, with costs.
Not deterred by that, on 16 September 2004 the applicant filed an application for issue of constitutional writs of certiorari and mandamus in respect of the delegate's decision made on 16 September 1999. The grounds upon which he sought those writs were set out in the draft order nisi, and those grounds add nothing to the matters that were before Branson J, the Full Court of the Federal Court or the High Court on the special leave application. Perhaps the only additional ground might be said to be an allegation that the applicant had been denied natural justice and denied a reasonable opportunity to be heard on his application before the delegate of the Minister.
The draft order nisi was returned before Callinan J of the High Court in Brisbane on 29 November 2004. The order nisi was discharged and, in doing so, his Honour said this:
In the circumstances, therefore, the applicant is unable to show that there has been any error, jurisdictional or otherwise, which would warrant the grant of any of the relief which he seeks, even if he could overcome the other substantial hurdles of delay, failure to comply with the rules relating to the filing of the application, and his failure to take the point which he now seeks to take earlier in the Federal Court. It is unnecessary for me to reach any views about these matters at all because, as I have said, the applicant fails at the threshold, that is, because of the applicant's inability to demonstrate any error of the kind which would lead to the grant of prerogative relief or an injunction. The application must be dismissed.
The grounds in the application before me are set out far more extensively than they have been before any other Court. There are, on their face, what seem to be some new issues raised in this application that have not been raised before. The first is an issue of apprehended bias against the applicant. That matter may have received some mention at least in the applications before the High Court, but it does not seem to have been raised in those terms. The second issue is one of relocation, dealt with in ground 4 of the application before me. That, too, does not seem to have been dealt with before by any other court. The other grounds relied upon by the applicant have all appeared before.
The Minister says, on this application, that the principles of res judicata apply to an application for judicial review. I agree. There is clear authority that this Court is bound to follow, to the effect that cause of action estoppel or res judicata, and that type of estoppel known as Anshun estoppel, applies to applications brought pursuant to the Judiciary Act1903 and the Migration Act1958: see, for example, Somanader v the Minister (2000) 178 ALR 677, Applicant S442 of 2002 v the Minister (2003) FCAFC 28, and Wong v MIMIA (2004) 204 ALR 722.
To determine whether res judicata operates against the applicant, one needs to determine the substance of the proceedings that were before the first court. It is for that reason that I have set out at length the grounds agitated by the applicant before the Federal Court and before the High Court. To the extent that those grounds are the same as the application before me, there has been a final determination in respect of those matters. To the extent that this application before me now raises new issues (identified by me earlier), there is nothing in the material before me to suggest that those issues could not have been raised before the Federal Court, the Full Court of the Federal Court, the High Court of Australia on the special leave application or in the claim for the issue of constitutional writs. Plainly they could have been raised in the earlier proceedings.
That those matters could have been raised before those Courts leads me to conclude, having regard to what fell from the High Court of Australia in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589, that the applicant can not now raise them before me. It seems to me that there has been sufficient opportunity for the applicant to raise all of the matters he now wishes to agitate before the other Courts that have, from time to time, been seized of his claims. He took the opportunity, it seems to me, to raise a new matter before the High Court of Australia that had not been raised in the Federal Court, and I am left to wonder why the matters he now wishes to agitate and that are new have not been raised before.
He says in argument that he has not had the benefit of proper advice, but the record plainly shows that he had an adviser with him before the Refugee Review Tribunal and the benefit of counsel in both matters before the High Court of Australia.
In those circumstances, I am satisfied that an estoppel operates against the applicant in these proceedings. Even if I am wrong in that view, this application is plainly an abuse of process. Accordingly, I will order pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 that the application filed on 10 December, 2004 be dismissed.
RECORDED : NOT TRANSCRIBED
HIS HONOUR: I order that the applicant pay the respondent's costs of and incidental to this application, including the application to the Minister, filed 14 February, 2005 fixed in the sum of $2900, such sum to be paid within 30 days.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S Haysom
Date: 12 April 2005
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