MZWYI v Minister for Immigration
[2005] FMCA 1102
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWYI v MINISTER FOR IMMIGRATION | [2005] FMCA 1102 |
| PRACTICE & PROCEDURE – Migration – application for summary disposal – whether application an abuse of process – whether principal of res judicata applies –– whether any discretion to permit application to continue – whether applicant a vexatious litigant. |
| Judiciary Act1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A, 441 Federal Magistrates Rules 2001, r.13 Federal Court Rules, O21 r1 |
| NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 SZBJM v Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FMCA 599 SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Stuart v v Sanderson (2000) 100 FCR 150 Maquarie Bank v National Mutual (1996) 40 NSWLR 543 NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 Arnold v National Westminster Bank [1990] 1 All ER 529 (CA) Ramsey v Skyring [1999] FCA 907 |
| Applicant: | MZWYI |
| Respondent: | THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 315 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 3 August 2005 |
| Last Submission: | 3 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Adam Slattery |
| Solicitor for the Respondent: | Ms Dea |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed pursuant to r.13.10(a) and r.13.10(c) of the Federal Magistrates Court Rules 2001.
That the applicant may not issue any proceeding against the Minister for Immigration and Multicultural and Indigenous Affairs or the Refugee Review Tribunal without leave of the Court.
The Applicant pay the Respondent’s costs fixed at $4,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 315 of 2005
| MZWYI |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The first respondent applies for summary dismissal of the applicant's claim on the ground that it is an abuse of process of the Court, and for an order that the applicant may not institute any further proceeding without leave of the Court.
The applicant has filed an application under s.39B of the Judiciary Act 1903 (Cth) seeking to review a decision of the Refugee Review Tribunal given on 6 November 2001.
The applicant, a citizen of Bangladesh, arrived in Australia on
12 February 1999. On 24 February 1999, he lodged an application for a protection visa. A delegate of the Minister rejected the application on 15 March 1999 and on 14 April 1999, the applicant applied to the Tribunal for review of that decision. On 6 November 2001, the Tribunal affirmed the decision not to grant a protection visa.
On 28 December 2001, the applicant filed in the Federal Court an application to review the decision of the Tribunal. On 20 March 2002, Emmet J. dismissed the application (NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361). The applicant appealed to the Full Court of the Federal Court. On 18 September 2002, the Full Court dismissed the appeal (NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293).
On 15 October 2002, the applicant filed in the High Court of Australia, an application for special leave to appeal against the dismissal of the appeal by the Full Court of the Federal Court on 18th September 2002. The application for special leave was dismissed by the High Court on 8 August 2003.
On 1 September 2003, the applicant filed an application in the Federal Magistrates Court (Sydney registry) for review of the Tribunal's decision. On 15 December 2003, Federal Magistrate Raphael dismissed the application pursuant to rr.13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (SZBJM v Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FMCA 599).
The applicant appealed to the Federal Court against the decision. The applicant was heard by Madjwick J. on 5 March 2004 (SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404). His Honour found that the appeal was incompetent. Having heard the appeal, he made this order:
(1)The purported appeal is incompetent, leave to appeal not having been obtained.
(2)An extension of time to file a notice of appeal is refused.
(3)Alternatively, the proceedings are an abuse of process.
(4)Alternatively, the proceedings are barred as res judicata or by virtue of the doctrine of Anshun estoppel.
(5)The Appellant to pay the Respondent's costs assessed in the sum of $2,500.00.
The applicant filed in the High Court of Australia an application for special leave to appeal against the decision of Madjwick J. The application was dismissed on 3 March 2005. The current application in the Federal Magistrates Court was filed in the Melbourne registry on 29 March 2005.
The first respondent's argument is that the application is barred by res judicata, just as the application commenced in the Sydney registry of the Federal Magistrates Court on 1 September 2003 was barred by res judicata.
Mr Slattery, who appeared for the applicant, argued that the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 gave the applicant a fresh argument not previously available to him. He argued that the Court had a discretion to allow a party to raise an issue for the first time in subsequent proceedings on the grounds of reasonableness and special circumstances. He referred to Port of Melbourne Authority v Anshun (1981) 147 CLR 589, Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, Stuart v v Sanderson (2000) 100 FCR 150, and Maquarie Bank v National Mutual (1996) 40 NSWLR 543.
In SAAP, the High Court held that the requirements of s.424A of the Migration Act 1958 (Cth) were mandatory when the Tribunal was conducting a review and hearing. Section 424A obliges the Tribunal to give the applicant, in the way the Tribunal considers appropriate, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it. Section 441 required that the information be given in writing. In SAAP the information was given orally, not in writing. The High Court held that the Tribunal had failed to discharge a mandatory statutory obligation, and so there was jurisdictional error.
Mr Slattery argued that in SAAP, the High Court overturned previous decisions of the Full Court of the Federal Court, particularly NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102. Since SAAP had been decided after the applicant's last application to the Court had been finally disposed of, the applicant had a new issue or argument which, on grounds of reasonableness and special circumstances, he ought to be allowed to pursue.
The new issue or argument, which Mr Slattery identified, arises from this paragraph in the Tribunal's decision:
As to what the applicant's position would be on his return to Bangladesh, I accept that he might face police or Court action pending from the 1994 charge, but for reasons given above I am not satisfied that he faces persecution over that matter. I am not satisfied that he faces any other police or court action given the vagueness and at least partial withdrawal of his claims at the hearing to be facing unspecified new charges; I am of the view that he invented this claim to boost his application.
Mr Slattery argued that the applicant's vagueness and partial withdrawal of aspects of his claim in the hearing were the reason for the conclusion that the applicant had invented an aspect of his claim to boost his application. Mr Slattery argued that s.424A applied to this information. It is not necessary to consider whether this argument has, or would have had, any prospects of success.
In the appeal heard by Madjwick J. on 5 March 2004 (SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404) his Honour said at [20-22]:
Res judicata
20 The basis upon which judicial review of such decisions might be had has altered more than once in recent years and, as is common in many fields of law, there have been significant developments in relevant judge made law. It has now been revealed in S157 that nothing in the Act, including s 474, is effective to immunise Refugee Review Tribunal decisions from judicial review for jurisdictional error. (One may infer that, with all the breadth and quality of legal advice available to the federal executive government, no safe statutory means has been discovered since S157 whereby judicial review for jurisdictional error might be ousted.) Notwithstanding that the interpretation given to s 474 in S157 was pronounced in 2003, in law such was always the correct way of understanding that section and the Act as a whole.
21 During the appellant’s time in Australia, there have been some statutory changes as to the bases upon which he might seek or not seek judicial review. Nevertheless, his claim always has been that, in a variety of ways expressed from time to time, the Tribunal’s decision should be quashed and his application for a protection visa remitted to the Tribunal for redetermination de novo. Whether such claims were originally framed as justified because of jurisdictional error or not, and whether he needed to frame them as such or not to obtain relief from this Court or the Magistrates Court, the applicant relied upon the facts of (a) the Tribunal’s decision; (b) that the Tribunal gave its decision for the reasons it did, and (c) the passage or otherwise of certain documents from the respondent’s department to the Tribunal. The applicant claimed that the legal effect of those facts was that the Tribunal’s decision had not been lawfully made and that the Tribunal should be made to redo its work. In my opinion, the rejection of that claim, as variously put in the Federal Court and in the High Court, means that such claim has merged into final and conclusive judgments and is not open for re-litigation. The way a claim is argued, or even expressed in terms of the actual relief claimed, does not affect the substance of the claim: that arises out of the asserted facts and their asserted legal effect.
22 I therefore agree, for the reasons given above, that this is a case of res judicata and that, as such, the proceedings cannot be maintained.
In Port of Melbourne Authority v Anshun, Brennan J. explained res judicata in this way [15]:
15. There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment (see per Williams J. in Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66CLR 557, at pp 600, 601 ); sometimes to mean a right which has been infringed (see Serrao v. Noel (1885) LR 15 QBD 549 ), and sometimes to mean the substance of an action as distinct from its form (see Krishna Behari Roy v. Brojeswari Chowdranee (1875) LR 2 Ind App 283). Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J. said in Blair v. Curran (1939) 62 CLR 464, at p 532 : "the very right or cause of action claimed or put in suit has . . . passed into judgment, so that it is merged and has no longer an independent existence . . . " (at p611)
The difference between res judicata and issue estoppel was explained by Gibbs CJ, Mason and Aickin JJ. at [17]:
17. The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J. in Blair v. Curran (1939) 62 CLR 464, at p 532 in these terms: "in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." (at p597).
In Anshun, the High Court was considering a form of estoppel where a party to litigation has not brought forward their whole case. A Court will not (except under special circumstances) permit litigation in respect of a matter which might have been put forward in an earlier case, but which was not.
Madjwick J. has held that this is a case of res judicata. His Honour also said that it was a case of Anshun estoppel (at [28]), but that was an alternative finding. His principal finding was res judicata. In the case of res judicata there is no discretion in the Court to permit a party to reopen the case to make a claim or raise an issue not previously brought forward, whatever the circumstances.
The cases which Mr Slattery referred to show the existence of the discretion in the case of Anshun estoppel. Ms. Dea, who appeared for the first respondent, referred to Arnold v National Westminster Bank [1990] 1 All ER 529 (CA), a case of issue estoppel, where the Court permitted a party to reopen a point of interpretation of a lease already decided in a previous case. The parties were the lessor and lessee of business premises. The lease contained a rent review clause. On the first rent review date a dispute arose and the judge held that a particular interpretation applied. Shortly before the second rent review date, the lessees instituted proceedings seeking a determination of the true construction of the rent review clause on the ground that subsequent cases had shown the judge's decision on the first rent review to be wrong. The lessors sought to strike out the statement of claim. The Court held that, although it was a case of issue estoppel, there was a discretion to permit the case to proceed, and it should be exercised in the lessee's favour.
The circumstances favourable to the exercise of the discretion in Arnold are the same or similar to those which Mr Slattery argues exist here, a finding by a higher Court that a previous decision is erroneous. However, Dillon LJ made it clear that there was no discretion in the case of res judicata (or cause of action estoppel as he called it). He said at 534
Cause of action estoppel binds absolutely. There is no qualification, such as "except in special circumstances". The only way round the decision on a point of law, which is subsequently held a higher court in proceedings between other parties to have been erroneous, is to appeal, if necessary getting leave to appeal out of time.
The same principle can be seen in the judgments in Anshun.
This is a case of res judicata. It has been stated to be so by Madjwick J. in clear terms. An application for special leave to appeal to the High Court has been dismissed. There is no basis on which the applicant can commence a third appeal. His attempt to do so is an abuse of process.
The first respondent applies for an order that the applicant be prevented from commencing further proceedings seeking review of the Tribunal's decision dated 6 November 2001 without leave of the Court. Rule 13.11(3) of the Federal Magistrates Rules 2001 provides:
(3) If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a) that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b) that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
The rule refers only to proceedings in the Federal Magistrates Court. This contrasts with r.13.11(1), a rule of wider application, which permits the Court to look at proceedings in the Federal Magistrates Court or any other Australian Court. Rule 13.11 (1) gives the Court the power to order that a person may not institute any proceedings in the Court without leave. The applicant has not applied under this rule because the application is restricted to proceedings seeking review of the Tribunal's decision dated 6 November 2001. In any event, there is no basis for making a wider order. The only evidence before the Court is in respect of applications seeking review of the Tribunal's decision.
This means that in considering the application, only proceedings in the Federal Magistrates Court come into the words of the rule. The three applications to the Federal Court (one to a judge at first instance, one to a Full Court and one to a single judge sitting on appeal from the Federal Magistrates Court), and the two applications to the High Court do not.
Ramsey v Skyring [1999] FCA 907 was an application before Sackville J. under O.21 r.1 of the Federal Court Rules concerning vexatious proceedings. As it then was, the rule was limited to a case where a party institutes proceedings in the Federal Court (it has since been amended, and r.13.11(1) of the Federal Magistrates Court rules is in the same form as the current O.21 r.1 of the Federal Court Rules). Notwithstanding this, his Honour said at [54] that in determining whether particular proceedings instituted in the Federal Court were in fact vexatious, it might be appropriate to take account of proceedings in other Courts where, for example, they have authoritatively resolved the particular issue against the person instituting proceedings.
The decision of Madjwick J authoritatively resolved all possible issues against the applicant. The decision of the Full Court of the Federal Court authoritatively decided all issues except possibly the res judicata issue. However, it is clear that the decision of the Full Court attracted the rule of res judicata. The Applications to the High Court in respect of both decisions have been dismissed. A reading of the judgment of the Full Court shows there was little, if any, merit in the arguments that the decision of Emmet J. was wrong. It is appropriate to take into account all of these decisions in deciding whether the applicant has habitually and persistently and without reasonable grounds instituted vexatious proceedings in the Court against another person.
The applicant has commenced two proceedings in the Court without reasonable grounds, the one dealt with by Federal Magistrate Raphael and this one. They had no hope of success and were vexatious. When proceedings in the other Courts are taken into account, the proceedings in the Federal Magistrates Court meet the description of habitual and persistent.
The first respondent has sought an order restricted to proceedings seeking review of the Tribunal's decision dated 6 November 2001. Rule 13.11(3) permits an order in respect of proceedings against a person, but does not make provision for an order in respect of any particular tribunal decision.
The Tribunal's decision dated 6 November 2001 is currently the only matter that could be the subject matter of an application against the first respondent. The application has been made by the first respondent only. The applicant is only likely to attempt to commence a proceeding against the first respondent in respect of a Tribunal decision. The Tribunal is a necessary party to any such application (SAAP). Therefore the order should be in respect of both respondents.
There will be orders dismissing the application pursuant to r.13.10(a) and r.13.10(c) and an order that the applicant may not issue any proceeding against the Minister for Immigration and Multicultural and Indigenous Affairs or the Refugee Review Tribunal without leave of the Court.
I. certify that the preceding Thirty-two (32) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
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