MZWHU v Minister for Immigration
[2005] FMCA 915
•30 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWHU & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 915 |
| MIGRATION – Refugee Review Tribunal – application dismissed. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Gibbs v Kinna (1999) 2 VR 19 |
| Applicants: | MZWHU & MZWHV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 554 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 30 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 19 May 2004 be dismissed.
The Applicants shall pay the Respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 554 of 2004
| MZWHU & MZWHV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application filed on 19 May 2004 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 21 January 2002 though handed down on 15 February 2002. The applicant is unrepresented and at the commencement of these proceedings has sought an adjournment of the proceedings in order to provide time for him to further prepare his case.
I indicated at the commencement that I would refuse the application for adjournment and incorporate reasons for refusal of the adjournment in my reasons for judgment in the substantive application. The reason why the court was not prepared to allow an adjournment in this matter in part arises from the chronology of events, which I shall recite presently in this judgment. But from a procedural point of view, it is evident that the application, having been filed on 19 May 2004, with a first hearing date of 18 August 2004, was subsequently adjourned before a Registrar to 20 October 2004.
On 20 October 2004 orders were made which included the requirement in the usual form concerning a court book to be filed by the respondent. That was to occur by 19 November 2004, although I note it is asserted by the applicant he did not receive that until earlier this year. Nevertheless, an amended application was to be filed by the applicant on or before 10 December 2004 and the applicant likewise was to file and serve any supplementary court book on or before 10 December 2004 and contentions of fact and law on or before 9 February 2005.
The matter was then listed by the Registrar for hearing on 24 March 2005. For reasons that are not apparent from the file, the matter did not proceed on that day but ultimately was the subject of an amended notice of listing where the matter was listed for hearing on 30 May 2005. In support of his application for an adjournment, the applicant has sought to rely upon correspondence from the Asylum Seeker Resource Centre and in that correspondence it was noted that the applicant had sought assistance from that centre, according to the author of the letter, "this evening". The letter is dated 25 May 2005. The letter further refers to explanations as to why the applicant has not complied with orders of the court referred to earlier but otherwise indicates that Victorian Legal Aid appear to have taken some three months to consider an application for aid and it had been rejected. Further, the Asylum Seeker Resource Centre itself has indicated that, for reasons of resources and short time frame, it is unable to assist or provide ongoing assistance in relation to the matter.
It appears that a letter dated 8 May 2005 in support of the application for adjournment was forwarded to the solicitors for the respondent, although I note addressed to the court. Although a copy of that correspondence is not on the court file, a copy was provided by counsel for the respondent of that letter dated 8 May 2005 together with attachments from the applicant. That letter sets out the chronology of events and in particular it is noted that on 6 February 2005 the applicant received the court book and that he then, some four days later, handed over that court book to a solicitor of the Legal Aid office. Ultimately it appears that on 3 May 2005, according to an email annexed to the letter, legal aid was not granted to the applicant in this matter.
The applicant otherwise refers to receipt of the material and then in support of his application for adjournment indicated that further time was required. In rejecting the application for adjournment I noted the chronology of events both in terms of the application in this instance being filed almost some 12 months ago with orders made in October 2004, and further note in any event that the decision now sought to be the subject of judicial review is a decision dated 21 January 2002.
Having failed to obtain legal assistance from Legal Aid and/or assistance from the Asylum Seeker Resource Centre, it was my view that there was little point in further adjourning the matter as I felt that the applicant had had an adequate opportunity to either seek legal assistance, at least from the time of filing the application some 12 months ago, or indeed had time to prepare material of a kind which could be provided to the court in support of this application.
It seems to me that those factors alone, regardless of the further chronology of litigation, to which I shall refer further in this judgment, on the face of it, appear to be a proper basis upon which the court should reject the application for adjournment. Further, it is submitted by the respondent that in any event the application is one which is without merit and that of itself is a further factor to take into account in the exercise of the court's jurisdiction in relation to whether it should grant an adjournment. There is some force in that submission, although in the circumstances it was not necessary for me to form a view in relation to the application over and above reciting the chronology to which I have referred, which of itself in my view leads the court to a conclusion that the applicant has had an adequate opportunity to prepare his case.
As it happened, when the application for adjournment was refused, the applicant then sought to provide to the court a six‑page typed submission in support of the application which provides a number of details which are described as a "series of jurisdictional errors". That document is a document which, to a large extent, seeks to agitate factual issues albeit that the facts are referred to as being matters which may constitute jurisdictional error. It is clear to me that that document itself demonstrates that the applicant has, with the assistance of a co‑signatory of that submission, had time to prepare and consider all the details of matters he wishes to raise before the court.
Despite the fact that that submission, which I regard as an outline of the applicant's contentions of fact and law, has been filed in court this day, I permitted the applicant to do so in the absence of an objection from the respondent and note that attached to that submission there are a number of photographs referred to in the submission which the applicant seeks to bring to the court's attention. I have permitted the applicant to rely upon that submission. As indicated, in my view the application ought to proceed today and the application for adjournment was refused, though I am prepared to take into account and consider the submission of the applicant filed in court this day, to which I have referred.
It is significant in this case to note that the respondent submits the application should be dismissed and should be dismissed on the basis that res judicata applies and/or issue estoppel and/or Anshun estoppel. The respondent further submits that in any event this application is an abuse of process.
To understand the respondent's submissions it is necessary to briefly set out the chronology of events which I take from the respondent's contentions of fact and law and to which cross‑reference has been made to relevant extracts from the court book. The applicants are citizens of Sri Lanka, they are husband and wife, who arrived in Australia on 4 November 1997 as the holders of subclass 676 visitor visas. On 29 January 1998 the applicants applied to the first respondent for protection visas. Only the applicant husband made specific claims to be a refugee. On 13 January 1999 a delegate of the respondent determined that the applicants were not persons to whom Australia had protection obligations and refused the grant of a protection visa.
On 3 February 1999 the applicants applied for review of the delegate's decision to the Refugee Review Tribunal pursuant to the provisions of the Migration Act. The RRT then affirmed the delegate's decision by its decision dated 12 September 2000, handed down on 29 September 2000, the first RRT decision. On 24 October 2000 the applicants sought judicial review of the first RRT decision by an application for an order of review in the Federal Court of Australia in application number S 112 of 2000. On 11 April 2001 O'Loughlin J of the Federal Court allowed the application and the matter was remitted to the RRT to be decided by a differently constituted tribunal.
On 21 January 2002 the RRT again affirmed the delegate's decision (the second RRT decision). The second RRT decision was handed down on 15 February 2002 and it is noted it is this application which is the subject of application for judicial review in this court. However, it is noted that on 11 March 2002 the applicants sought judicial review of the second RRT decision by an application for an order of review in the Federal Court of Australia in proceedings number S75 of 2002. On 28 November 2002 O'Loughlin J dismissed the application for judicial review from the second RRT decision (the second Federal Court decision).
On 24 December 2002 the applicants sought constitutional writ relief in the High Court of Australia in proceedings A420 of 2002 in relation to the second RRT decision. That application was remitted to the South Australian District Registry of the Federal Court. On 22 August 2003 Selway J of the Federal Court dismissed the application in the absence of any steps having been taken in accordance with orders which had been earlier made by that court on 30 June 2003 (the third Federal Court decision).
Ultimately then, on 19 May 2004 the applicants made this application for review of the court. The principal claim by the applicant husband was that he had a well‑founded fear of persecution due to his political opinions as a member and supporter of the Sri Lankan political party, United National Party (UNP) and, due to his association with senior members of the UNP, he claimed to fear persecution from members or supporters of the main opposition party, Peoples Alliance. He also claimed to fear persecution due to the Tamil ethnicity of his wife and as a member of the social group comprised of the entourage of the ruling elite, who are distinguished by the privileges they receive by their ethnic background and their religion.
A summary of the claims and findings is set out in the judgment of O'Loughlin J in the Court Book (pages 217‑218). It is not necessary for me to otherwise set out the details from the second RRT decision, which is the subject of review before this court.
The submissions made in writing to the court this day refer to a series of jurisdictional errors. Those errors identified in the written submissions clearly refer to a number of issues which in my view could properly be characterised as seeking to re‑agitate facts previously raised and considered by the RRT and/or to introduce additional factual material which could and should have been raised by the applicant at the previous hearing leading to the second RRT decision.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
It is noted that the application itself simply refers to the court setting aside the second RRT decision on the basis that it was unreasonable and that the RRT had failed to consider relevant considerations and that there had been a breach of natural justice. It is clear to me that the material now sought to be relied upon by the applicant, applying the relevant principles to which I must have regard in assessing jurisdictional error, that there is indeed no jurisdictional error displayed in the second RRT decision.
Further, it is important to note the chronology of events and in my view there is clear evidence in this case that in any event the decision‑making process which has occurred, that is, the decision of O'Loughlin J on the second occasion, which I have referred to as the second Federal Court decision, would invoke the principles of the doctrine of res judicata.
I incorporate in this decision the passage referred to in the respondent's submissions from the decision of Kenny J of the Court of Appeal of the Supreme Court of Victoria, as she then was, in the matter of Gibbs v Kinna (1999) 2 VR 19 as follows:-
“… rule of res judicata is that, generally speaking, no proceedings can be maintained as a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.
The doctrine rest on the rule of public policy expressed in the Latin maxim ‘nemo debet bis vexari pro si constat curiae quod sit una et eadem causa’’ (‘no one ought to be molested twice, if it appears to the Court that it is for one and the same matter’): Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597.”
I further apply the decision of Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677.
During the course of submissions this day counsel for the respondent has referred to a decision of this court in the matter of MZWKF v Minister for Immigration [2005] FMCA 279 and has referred to a decision of Mowbray FM in the matter S1198 of 2003 v Minister for Immigration [2004] FMCA 1046. Those cases both refer to the principles in relation to res judicata together with issue estoppel, Anshun estoppel and abuse of process. I refer to and apply the principles as set out in both decisions in relation to the question of res judicata, which I am presently considering, but also in relation further to those principles which apply in considering whether issue estoppel, Anshun estoppel or abuse of process applies in the present case.
It seems to me that on a proper reading of the decision and having considered the fact that O'Loughlin J in the second Federal Court decision has effectively dealt with the second RRT decision, this is a matter where, apart from applying the principles of the doctrine of res judicata, that clearly, having regard to the authorities to which
I have referred, issue estoppel applies and/or at the very least Anshun estoppel applies to the present application.
In relation to issue estoppel, I shall incorporate the specific reference to the decision of Dixon J as he then was in Blair v Curran (1939) 62 CLR 464 at 532 referred to in the submissions of the respondent.
I further refer, in relation to the issue of Anshun estoppel, to the extract from the Full Court decision in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, paragraphs 36 to 39 as follows:-
36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
37 A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged 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: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602
38 Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
39 Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.”
In my view the present application clearly appears to agitate issues which have been or at least should have been considered in the earlier proceedings. I am satisfied in applying the relevant principles of law as indicated earlier that not only does res judicata apply but in the event that it does not apply issue estoppel and Anshun estoppel applies to the facts and circumstances of this application, applying the relevant authorities to which I have referred.
As to whether this is an abuse of process, I note and apply the High Court decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 as follows:-
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiable oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
It is relevant to note in considering the issue of abuse of process that in this application, as indicated earlier, I am satisfied that there is no jurisdictional error. I am further satisfied that issues were properly and appropriately considered in the second Federal Court decision of O'Loughlin J. To add to that should be the fact that His Honour Selway J dismissed the further proceedings which had been remitted from the High Court and did so on the basis that procedural steps had not been undertaken by the applicant.
Although some explanation has been advanced as to why the applicant did not comply with those orders, it seems at the very least unusual in my view that once having been notified of the decision of Selway J of 22 August 2003 other steps were not taken to seek to set aside that order of His Honour and to continue to agitate the matter that had been referred to that court on remittal from the High Court. Instead there is a further application which seeks again judicial review of the second RRT decision, which had been the subject of adjudication previously by O'Loughlin J and which in my view provides a proper basis upon which I can apply the doctrine of res judicata and/or issue estoppel and Anshun estoppel.
Further, however, in my view, that chronology of events giving rise to the application of the doctrines to which I have referred, combined with the dismissal of the application by Selway J in the Federal Court of Australia on 22 August 2003 against the backdrop of what
I conclude to be an application foredoomed to failure provides me with an appropriate basis to find, as I do find, that this application is in any event an abuse of process, applying, as I do, the principles set out by the High Court in Walton v Gardiner.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 May 2005
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