Judgment delivered by Mowbray FM on 22 February 2006 as
[2006] FMCA 327
•22 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAM v MINISTER FOR IMMIGRATION & ANOR (CORRIGENDUM) | [2006] FMCA 327 |
| MIGRATION – Review decision of Refugee Review Tribunal – citizen of Bangladesh – claimed danger due to political activities – res judicata – Anshun estoppel– abuse of process – leave of the court required for further applications – application barred – application dismissed. |
| SZFVM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1047 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | CZAM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 38 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 22 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 22 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Advocate for the First Respondent: | Mr A Chand |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 24 August 2005 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules as an abuse of process of the Court.
Alternatively, the proceedings are barred as res judicata or under the doctrine of Anshun estoppel.
The applicant not file any future proceedings relating to the decision of the Refugee Review Tribunal handed down on 20 February 2003 without leave of the Court.
The applicant pay the costs of the first respondent fixed in the sum of $2,250.
CORRIGENDUM
Judgment delivered by Mowbray FM on 22 February 2006 as [2006] FMCA 327
Amend order 3 to read:
The applicant not file any future proceedings relating to the decision of the Refugee Review Tribunal handed down on 20 February 2003 without leave of the Court.
Amend paragraph 19 to read:
I therefore dismiss these proceedings under the doctrines of res judicata and Anshun estoppel, and as an abuse of process. I also make an order that no further application be accepted in relation to the decision handed down by the Refugee Review Tribunal on 20 February 2003 without leave of the Court (see Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500).
_____________________________________________________________________I certify that the preceding two paragraphs are a true copy of the Corrigendum to the Judgment [2006] FMCA 327 of Mowbray FM.
Associate: Natasha Werner
Date: 23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 327 |
| MIGRATION – Review decision of Refugee Review Tribunal – citizen of Bangladesh – claimed danger due to political activities – res judicata – Anshun estoppel – abuse of process – leave of the court required for further applications – application barred – application dismissed. |
| SZFVM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1047 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | CZAM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 38 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 22 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 22 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Advocate for the First Respondent: | Mr A Chand |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 24 August 2005 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules as an abuse of process of the Court.
Alternatively, the proceedings are barred as res judicata or under the doctrine of Anshun estoppel.
The applicant not file any future proceedings relating to the decision of the Refugee Review Tribunal handed down on 20 February 2005 without leave of the Court.
The applicant pay the costs of the first respondent fixed in the sum of $2,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 38 of 2005
| CZAM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal made on 29 January 2003 and handed down on 20 February 2003 affirming the decision of the delegate of the first respondent to refuse the applicant a protection visa.
The applicant has claimed that he would be in danger if he returned to Bangladesh because of his political activities.
Since the Tribunal handed down its decision the applicant has had this matter in the courts on numerous occasions. On 22 September 2003 Branson J dismissed his application for judicial review, which had been brought on two grounds, apprehended bias and fitness to take part in the hearing. On that occasion the applicant was represented by experienced counsel.
The applicant then appealed to the Full Federal Court. He failed to comply with orders that he file and serve an amended notice of appeal setting out the grounds of appeal and the particulars of those grounds. This matter came before the Court on two occasions, before Emmett J on 19 December 2003 and Finn, Emmett and Selway JJ on 18 February 2004. His appeal was dismissed.
The applicant then filed an application for special leave to appeal to the High court on two occasions. Both of these applications were dismissed because he failed to comply with orders for the filing of documents.
He then instituted proceedings on 7 March 2005 in the Federal Magistrates Court seeking review of the same Tribunal decision. The application set out only general and unparticularised grounds. This application is very similar to the current application filed on 24 August 2005. Federal Magistrate Barnes dismissed the application on 15 June 2005 as an abuse of process and alternatively that the application was barred by estoppel.
The applicant then appealed to the Federal Court. Gyles J on 27 July 2005 in SZFVM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1047 dismissed the application, stating at [5]:
Notwithstanding the failure of the applicant to isolate any ground of appeal, I have read the learned Federal Magistrate’s decision and it seems to me that, far from there being doubt about the correctness of that decision it is, so far as I can see, plainly correct and recites a set of facts which can only be described as an appalling abuse of process.
Despite that comment of Gyles J on 27 July 2005, on 24 August 2005 the applicant filed a new application in the Federal Magistrates Court. This contains eight grounds which are very similar to those he had asserted in his previous application. There are no particulars and on its face this application has no prospects of success.
At the first directions hearing on 29 September 2005 the applicant was ordered to file any amended application by 15 January 2006. The nature of that order is such that he was not obliged to file an amended application. But he did not take advantage of it. On 17 February 2006 he filed a document entitled “Applicant’s Submissions” which contained a number of claims which could be regarded as possible grounds for judicial review. Mr Chand for the Minister was happy for this document to be accepted as an amended application.
The respondent Minister has sought to have the application dismissed summarily on a number of grounds. It is only necessary to consider some of these.
I am minded that the relevant authorities have asserted that dismissing an application for abuse of process is an extreme remedy which is to be exercised with care. The Minister relies also on the doctrine of
res judicatafor the grounds which were raised before Branson J. That doctrine operates as an absolute bar to re-litigating those grounds.
The doctrine of Anshun estoppel is relied upon for the other grounds. The minister contends that it is far too late now to seek to raise grounds that could have been raised before Branson J in 2003.
The principles for res judicata and Anshun estoppel are set out in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242. Wong held that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the courts. Once an issue has been determined according to law and all rights of appeal have been exhausted that should be an end to the matter. The resources of the community ought not to be expended in litigation more that once for the same issue.
A party may raise the doctrine of Anshun estoppel in relation to every issue that properly belongs to the subject of the earlier litigation, and which the parties exercising reasonable diligence might have brought forward at the time of the earlier litigation. There may be instances where there are special circumstances which permit a party to raise issues in subsequent proceedings. However such circumstances must be exceptional.
The relevant principles apply par excellence to this case. The matters which were not before Branson J that have been now raised by the applicant should have been litigated when he was before Branson J.
I note that he was represented by competent counsel. It was unreasonable for him not to have raised these issues at that earlier stage. At the very least he should have raised them before Federal Magistrate Barnes when he again sought judicial review this time in this Court.
I asked the applicant whether there were any exceptional circumstances for his not having raised them earlier. He said they were raised by him then and that he had nothing further to add. The only other matter he mentioned today was that he was unable to return to Bangladesh because of “difficulties”.
In my view nothing put by the applicant amounts to special circumstances as envisaged by Anshun. Those grounds which are not barred by res judicata certainly fall within the Anshun principle.
Furthermore, having regard to the High Court authority in Walton v Gardiner (1993) 177 CLR 378 these proceedings are an abuse of process. Gyles J has described the earlier proceedings as an appalling abuse of process. It is far too late to raise grounds now. I note also that although the applicant has had the Minister’s outline of submissions on summary dismissal since 21 December 2005 he has said nothing in response to them.
I therefore dismiss these proceedings under the doctrines of res judicata and Anshun estoppel, and as an abuse of process. I also make an order that no further application be accepted in relation to the decision handed down by the Refugee Review Tribunal on 20 February 2005 without leave of the Court (see Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500).
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 23 March 2006
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