MZWVL v Minister for Immigration

[2005] FMCA 581

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWVL v MINISTER FOR IMMIGRATION [2005] FMCA 581

PRACTICE AND PROCEDURE – Migration – Protection visa – whether abuse of process, res judicata, issue estoppel or Anshun estoppel – whether vexatious – order that no further applications without leave.

Dey v Victorian Railway Commissioners (1949) 78 CLR 91
Wang v Minister for Immigration (2004) 204 ALR 722

Applicant: MZWVL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1694 OF 2004

Judgment of: McInnis FM

Hearing date: 26 April 2005

Delivered at: Melbourne

Delivered on: 26 April 2005

REPRESENTATION

Applicant: No appearance

Solicitor for the Respondent: Mr G Carroll

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

UPON THE UNDERTAKING of the representative of the Respondent to file with the Court an affidavit of service by 4 pm on 29 April 2005

THE COURT ORDERS THAT:

1. Pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, the application filed on 24 December 2004 be dismissed.

2. Pursuant to Rule 13.11(1)(b) of the Federal Magistrates Court Rules2001 the applicant shall not institute a proceeding in the Federal Magistrates Court of Australia without the leave of the court.

3. The Applicant shall pay the Respondent's costs fixed in the sum of $3800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1694 of 2004

MZWVL

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the applicant, by an application filed on 24 December 2004, seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 April 2002.  In Tribunal decision affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa.

2. The applicant, who claims to be a national of Bangladesh, had arrived in Australia on a Bangladeshi passport issued in another name on

   
   

   13 May 2000.

3. Before the court this day is a notice of motion, which I take to be an application for the purposes of this court, filed by the respondent on 8 March 2005, which effectively seeks summary dismissal of the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001.

4. In the respondent's notice of motion a further order is sought seeking an order under rule 13.11(1)(b) of the Rules; namely, that the applicant may not institute a proceeding without leave of the court.

5. The application by the respondent is supported by an affidavit by Jacqueline Ann Davis sworn on 8 March 2005.  It is noted that when the application was called this day there was no appearance for the applicant.

6. The respondent's representative has undertaken to file with the court an affidavit of service, verifying that service of the notice of motion and the affidavit in support has been effected upon the applicant.  In my view it is appropriate that that affidavit be filed with the court on or before 29 April 2005.  Subject to the undertaking to file that affidavit material in the motion of service, it is appropriate for the matter to proceed and for orders to be made this day.

7. The affidavit of Ms Davis sworn 8 March 2005 provides what appears to be an accurate and succinct chronology of events which form the basis upon which the respondent seeks summary dismissal and, further, an order under rule 13.11(b) of the Federal Magistrates Court Rules. The deponent states:-

   “1.I am a solicitor in the sole employ of the Australian Government Solicitor (AGS), the solicitor for the respondent, and have the care and conduct of this proceeding on her behalf.  I make this affidavit on information and belief after perusing documents contained on the litigation files maintained by AGS in respect of this litigation.

   2.      The applicant is a male citizen of Bangladesh.

   3.On 8 June 2000, the applicant lodged an application for a Protection (Class XA) visa (protection visa).

   4.On 23 June 2000, a delegate of the respondent refused to grant the applicant a protection visa.

   5.On 25 July 2000, the applicant applied to the Refugee Review Tribunal (the RRT) for merits review of the delegate’s decision.

   6.On 10 April 2002, the RRT affirmed the delegate’s decision not to grant the applicant a protection visa.  The RRT’s decision was handed down on 7 May 2002.

   7.On 27 May 2002, the applicant lodged an application for judicial review of the RRT’s decision in the Sydney Registry of the Federal Court (‘Federal Court Application N848 of 2002’).  The judicial review application raised the following grounds:

   a.failure to follow procedures required by the Migration Act 1958; and

   b.failure to consider relevant considerations, including by ignoring ‘material facts’.

   8.Federal Court Application N484 of 2002 was supported by an affidavit sworn by the applicant on 24 May 2002 and filed in that proceeding. 

   9.The matter was subsequently transferred to the Federal Magistrates Court, where it was heard before Barnes FM.

   10.In addition to the grounds raised in Federal Court Application N484 of 2002, the applicant also alleged a breach of natural justice, unreasonableness and absence of good faith before the Federal Magistrates Court: see the applicant’s affidavit sworn 24 May 2002 and NAJR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 316 (Madgwick J, 25 March 2003) at [7] and [8] which are respectively reproduced at JAD-3 and JAD-6 to this affidavit.

   11.On 13 December 2002 Barnes FM dismissed the application, relying on the interpretation of the privative clause propounded in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449.

   12.On 31 December 2002, the applicant appealed from the whole of the judgment of Barnes FM to the Federal Court (Federal Court Appeal N1433 of 2002).

   13.On 4 February 2003, the High Court handed down Plaintiff S157/2002 v Cth of Australia (2003) 195 ALR 24.

   14.On 8 August 2002, the High Court of Australia handed down Muin v RRT (2002) 190 ALR 601.

   15.On 25 March 2003 Federal Court appeal N1433 of 2002 was heard before Madgwick J.  His Honour dismissed the appeal on the day of the hearing. 

   16.According to [9] of Madgwick J’s judgment, in addition to the abovementioned grounds of review, the applicant raised actual bias and failure to inquire/investigate as grounds in the appeal.

   17.Madgwick J’s judgment refers to the then recent High Court decisions of Plaintiff S157/2002 and Muin.  At [17] of Madgwick J’s judgment, his Honour states that the applicant was given the opportunity ‘to agitate every matter that concerned him before me and has freely done so’.

   18.    His Honour found at [19] that:

   ‘the appellant does not have any reasonably arguable case that there was any jurisdictional error and it would be wrong to accord him a further opportunity to exploit procedural opportunities to extend this apparently quite unwarranted stay in Australia’.

   19.On 17 April 2003, the applicant filed an application in the High Court of Australia for Special Leave to Appeal from Madgwick J’s judgment (‘Special Leave Application S139 of 2003’).

   20.On 12 March 2004, Gummow and Heydon JJ dismissed Special Leave Application S139 of 2003. 

   21.At page 2 of NAJR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA Trans 72 Gummow J finds:

   ‘We are of the view that it would be futile to allow an adjournment because, having regard to the materials, it appears to us that if the matter were to proceed with a special leave hearing, there would be no prospects of success in obtaining that grant of special leave.’

   22.On 8 April 2004, the applicant filed an Application for Order Nisi in the High Court of Australia, seeking Constitutional writs in respect of the RRT decision (High Court Application S134 of 2004).

   23.On 23 August 2004, Heydon J dismissed High Court Application S134 of 2004 at a Callover of 11 Immigration matters in Sydney.  Heydon J dismissed the application on the basis of anshun estoppel and because there was no evidence or other material suggesting that any of the grounds raised by the applicant had any prospects of success.

   24.On 24 December 2004, the applicant initiated the present judicial review application in the Federal Magistrates Court.  The application seeks judicial review of the same RRT decision which was the subject of the applicant’s earlier judicial review applications.  The application raises unparticularised grounds of review which were or could have been raised by the applicant in his first judicial review proceedings.”

8. It is clear from that chronology of events, as set out in the affidavit of Ms Davis, that in this application the applicant has simply sought to file a further application seeking review of the Tribunal decision.

9. I am satisfied that to do so in this application, having considered the reasons given by the Tribunal and the chronology of proceedings referred to in the paragraphs quoted earlier in this judgment from the affidavit of Ms Davis, that in applying the appropriate principles of law in relation to res judicata and in relation to abuse of process and whether or not the application could properly be regarded as an application to be described as frivolous or vexatious, that indeed in this instance the application is one to which all those principles apply.  It is very clearly an abuse of process.

10. I am conscious of the fact that in making a decision in relation to summary dismissal that the court must be satisfied that in a case of this kind, as indeed in other cases, that the circumstances are very clear to justify summary intervention (see Dey v Victorian Railway Commissioners (1949) 78 CLR 91 per Dixon J).

11. In applying the relevant principles of law in relation to the issue of summary dismissal and/or res judicata, and/or indeed issue estoppel and Anshun estoppel to the extent that it is necessary, I have no doubt in this application that having regard to the chronology of events referred to earlier, that this is indeed a case where a summary dismissal order should be made.

12. The chronology of events in my view also discloses that in this case the court can be satisfied that the applicant has, to quote the words of rule 13.11(1), "habitually, persistently or without reasonable grounds instituted other vexatious proceedings in the court, or any other Australian court".

13. In this case it is clear to me that the proceedings which have been issued earlier and the reasons given in other courts, including the decision made earlier by Barnes FM in the case referred to, are sufficient to satisfy me that the requirements of subrule (1) of rule 13.11 have been made out.

14. Accordingly, in my view it is appropriate that I should make a specific order that the applicant may not issue a proceeding without the leave of the court.  I can only make that order as it applies to this court, and will do so in the appropriate form.

15. The principles to be applied in considering res judicata, issue estoppel and Anshun estoppel are set out in Wang v Minister for Immigration (2004) 204 ALR 722 at [49], [61 – 64] , [71] and [149].

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  26 April 2005