MZXEF v Minister for Immigration - [2006] FMCA 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXEF & ORS v MINISTER FOR IMMIGRATION
& ANOR

[2006] FMCA 187

MIGRATION – Protection Visa.

PRACTICE AND PROCEDURE – Migration – Protection Visa – Summary dismissal – res judicata – abuse of process.

Federal Magistrates Court Rules2001, r.13.10(a), r.13.10(c)
Migration Act 1958, s.475A
Judiciary Act 1903, s.39B

Dey v Victorian Railways Commissioners (1949-1949) 78 CLR 62
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127

First Applicant:

MZXEF

Second Applicant:

MZXEG

Third Applicant:

MZXEM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1426 of 2005

Judgment of:

McInnis FM

Hearing date:

31 January 2006

Delivered at:

Melbourne

Delivered on:

31 January 2006

REPRESENTATION

First Applicant:

In person

Second & Third Applicants

No appearance

Counsel for the Respondents:

Ms N. Ngo

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 14 November 2005 be dismissed pursuant to rule 13.10(a) and/or 13.10(c) of the Federal Magistrates Court Rules 2001.
The Applicants shall pay the First Respondent's costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1426 of 2005

MZXEF

First Applicant

MZXEG

Second Applicant

MZXEM

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for summary dismissal filed on 6 December 2005 where the First Respondent seeks the dismissal of an application for order to review which had been filed by the Applicant on 14 November 2005. The application for summary dismissal is made pursuant to r.13.10(a) or r.13.10(c) of the Federal Magistrates Court Rules2001 (“the Rules”).

“13.10 Disposal by summary dismissal
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief: or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”

It is argued on behalf of the First Respondent that there is no reasonable cause of action disclosed, or in the alternative, on the basis that the proceeding is an abuse of the Court process.
By way of background, it is noted that the Applicants are a mother and two daughters and are citizens of Sri Lanka who arrived in Australia on 20 May 2000. On 29 June 2000 they lodged an application for protection visas. On 9 August 2000 a delegate of the First Respondent refused the visas and then on 31 August 2000 the Applicants applied for review of that decision. The Refugee Review Tribunal (“the Tribunal”) in a decision dated 21 January 2002 affirmed the delegate's decision not to grant protection visas.
It is important to note the chronology of events which appears to be accurately set out in the outline of submissions of the First Respondent, which includes further additional material. On 14 March 2002 the Applicants lodged an application for an order nisi in the High Court of Australia, the first application. On 30 July 2002 Hayne J of the High Court remitted the matter to the Federal Court of Australia and that matter became proceeding V676 of 2002. On 29 November 2002 the Applicants filed an application under s.475A of the Migration Act 1958 (“the Act”) and s.39B of the Judiciary Act 1903 in the Federal Court of Australia.
On 12 November 2003 Sundberg J of the Federal Court dismissed proceeding V676 of 2002. The Applicants then filed on 1 December 2003 a notice of appeal to the Full Court of the Federal Court of Australia. That appeal was dismissed by the Full Court on 14 May 2004. The Applicants then filed an application for special leave in the High Court of Australia. The special leave application was refused by the High Court on 26 May 2005. The Applicants then, as indicated earlier in this judgment, filed the present application in this Court on

14 November 2005.
In its decision the Tribunal, in affirming the decision of the delegate to refuse the grant of a protection visa, based its finding in that the First Applicant had not been harassed or threatened because she was a member of the United National Party. It also did not accept other claims made by the Applicant, including that she took in Tamil borders and reported friends to police and as a result was threatened by the LTTE after one of them was arrested.
The issue of summary dismissal requires the Court to carefully consider a case which in general terms must be very clear before the Court would be prepared to consider summary dismissal. I shall incorporate in this judgment the relevant extracts from the decision of the High Court of Australia in Dey v Victorian Railways Commissioners (1949-1949) 78 CLR 62 at page 91 where Dixon J states:
“The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
In this application, it is clear from the chronology of events according to the First Respondent's submissions that the issues now sought to be agitated in this further application for judicial review of the Tribunal decision are similar to or the same as in substance the action which had been previously determined by the Federal Court in the proceedings referred to earlier and which were the subject of an unsuccessful appeal by the Applicants to the Full Court of the Federal Court.
It is argued therefore that the principles of res judicata apply and that the present application is barred by the operation of that doctrine. It submitted the cause of action in the present application is in substance the same cause of action that was dismissed in the first application. It is argued as a matter of law, and I accept, that where res judicata applies as a matter of law it bars a litigant from pursuing a claim. The Court then does not retain a discretion to ameliorate the application of the doctrine. (See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612-613.)
The Applicant, who is unrepresented, has relied upon an outline of submissions dated 27 January 2006. During the course of her submissions to the Court, in addition to those written submissions, the Applicant has sought to rely upon further updated country information. The combined effect of that information together with other information annexed to her outline of submissions would appear to relate to the issue that the Applicant seeks to identify, that is, that the Tribunal had not properly considered relevant and up-to-date country information.
It seems clear from the written submissions and oral submissions made by the unrepresented Applicant this day that she has further sought to agitate a second issue, namely that she was denied procedural fairness in being required to attend and proceed with the hearing before the Tribunal at a time when she was medically unfit.
In my view, on a proper reading of the material including, significantly, the judgment of the Full Court in this matter which was M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127. It is possible to conclude that the primary judge had properly considered the issue of country information now sought to be agitated and upon the Full Court of the Federal Court hearing the appeal, it was held there was no error made by the primary judge in the manner in which that judge considered that issue.
Further it is clear to me on a proper reading of the Full Court decision that it had considered what are described as a number of additional issues sought to be raised by the Applicant on appeal. In particular that Court makes reference to those additional issues in paragraph 12 of its decision as follows:
“12 In written submissions, the appellant raised a number of additional issues. They included that she had been denied procedural fairness because she had been required to attend the hearing before the Tribunal at a time when she was medically unfit. The appellant also contended, in effect, that the Tribunal failed to take into account her mental state when assessing her evidence and, in particular, when considering the significance of her inability to name the Tamil boarders she claimed to have taken in during 1999.”
In my view, there is little doubt that in this case the issues now sought to be agitated in this application by the Applicants before this Court are substantially the same as the issues which had been initially before the primary judge in the first application and in any event, which had been considered by the Full Court of the Federal Court on appeal from that decision.
In those circumstances, having found that the issues are in substance the same as the action which had previously been disposed of in the decisions referred to earlier in this judgment and where particularly the precise issues now sought to be agitated clearly from the extracts referred to above were considered by the Full Court. It is clear to me that the doctrine of res judicata applies. It follows therefore that the application for summary dismissal should be granted and accordingly it would follow that the application of the Applicant filed on 14 November 2005 should be dismissed with costs.
The Respondent has also sought to rely upon issue estoppel, Anshun estoppel and/or abuse of process. Having regard to my decision concerning the applicability of the doctrine of res judicata, in my view, it is unnecessary to consider the further arguments advanced for and on behalf of the First Respondent save that I note in passing that in the event that I were to be in error in my assessment of the material as constituting a proper basis for the doctrine of res judicata to apply, that in any event, I would be otherwise satisfied that this application is an application which would constitute an abuse of process.
In the circumstances, as I have indicated, it is appropriate for this Court to summarily dismiss the application. I am satisfied that this application does no more than seek to re-agitate those issues which were properly the subject of the first application, which in turn were the subject of adjudication by a primary judge and an unsuccessful appeal from that decision by the Full Court of the Federal Court of Australia.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate: Brooke Evans

Date: 31 January 2006