NACF v Minister for Immigration
[2005] FMCA 917
•6 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NACF v MINISTER FOR IMMIGRATION | [2005] FMCA 917 |
| MIGRATION – Review of Refugee Review Tribunal decision – notice of motion – notice of motion upheld – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 477(1A)
Federal Magistrates Court Rules 2001 (Cth), Part 13 r.13.10(c),
Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
Re Ruddock; Ex parte LX [2003] FCA 561
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal
(2002) 190
ALR 601
NACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 288
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | NACF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1086 of 2005 |
| Delivered on: | 6 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms J Bautista of Sparke Helmore |
ORDERS
The respondent’s Notice of Motion is upheld.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1086 of 2005
| NACF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 10 May 2005, the respondent moved the Court for orders that the proceedings be dismissed on the grounds that:
a)The doctrine of res judicata applied and was a complete bar to the application.
b)The doctrine of issue estoppel applied and was a complete bar to the application.
c)Anshun estoppel applied and there were no special circumstances to justify its non-application.
d)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), the proceedings were an abuse of process of the Court.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 28 April 2005 for a review of the decision of the Tribunal made on 27 August 2002 and handed down on 18 September 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 February 2000 to refuse to grant the applicant a protection visa.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NACF”.
For the purpose of this Notice of Motion, the respondent tendered and applied for an affidavit of John Stuart Kettle sworn on 10 May 2005 (“the affidavit of Mr Kettle”) to be admitted into evidence.
Applicant’s background
Details of the applicant’s background were set out in Exhibit JSK1 annexed to the affidavit of Mr Kettle which included a Court Book (“CB”) that was prepared for the Federal Court proceedings N1074 of 2002.
The applicant, who claims to be stateless, arrived in Australia on 19 October 1999. On 25 November 1999 he lodged an application for a protection visa with the Department of Immigration (“the Department”) under the Act (CB pp.5-27). On 29 February 2000 the delegate refused to grant a protection visa (CB pp.28-33) and on 9 March 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.34-37).
The applicant claimed he is stateless Bihari refugee. He claimed he was born in Bangladesh in November 1979 of Bihari parents, born in India before the petition that saw the creation of Pakistan (East and West). Historically the Bihari people were loyal to Pakistan throughout the Bangladeshi 1971 War of Independence. Many Biharis did not take up Bangladeshi nationality in 1971 and therefore remained stateless (CB p.66).
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)On 25 November 1999 the applicant lodged an application for a protection visa with the Department.
b)On 29 February 2000 a delegate refused to grant the applicant a protection visa.
c)On 9 March 2000 the applicant lodged an application for a review of the delegate’s decision with the Tribunal.
d)On 18 September 2002 the Tribunal, constituted by Mr Luke Hardy, handed down its decision to affirm the delegate’s decision to refuse to grant a protection visa.
e)On 14 October 2002 the applicant filed an application for review of the Tribunal’s decision and an affidavit in the Federal Court of Australia, New South Wales District Registry. The matter was allocated the Federal Court proceedings number N1074 of 2002.
f)On 1 November 2002 the Honourable Justice Tamberlin transferred the matter to the Federal Magistrates Court of Australia. The matter was allocated the Federal Magistrates Court proceedings number SZ1382 of 2002.
g)On 23 May 2003 the Honourable Federal Magistrate Raphael ordered that the application be dismissed with costs.
h)On 12 June 2003 the applicant filed a notice of appeal in the Federal Court of Australia from the judgment of Raphael FM dated 23 May 2002. The matter was allocated the Federal Court proceedings number N698 of 2003.
i)On 8 September 2003 the Honourable Justice Conti ordered that the appeal be dismissed with costs.
j)On 1 October 2003 the applicant lodged an application for special leave to appeal in the High Court of Australia. The matter was allocated the High Court proceedings number S525 of 2003.
k)On 1 April 2004 the respondent received a letter from the High Court Registry advising that the matter had been deemed abandoned.
l)On 27 April 2004 the applicant filed a further application for special leave to appeal and an affidavit in the High Court. The matter was allocated the High Court proceedings number S161 of 2004.
m)On 10 March 2005 the Honourable Justices Kirby and Gummow ordered that the application for special leave to appeal be dismissed with costs.
n)On 28 April 2005 the applicant filed an application for judicial review in the Federal Magistrates Court. The matter was allocated the Federal Magistrates Court proceedings number SYG1086 of 2005.
Notice of Objection to Competency
On 9 May 2005 the respondent filed a Notice of Objection to Competency in the following terms:
The respondent objects to the jurisdiction of this Court to try this application for judicial review under the Judiciary Act 1903 and the Migration Act 1958, on the grounds that:
1The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 27 August 2002 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
2The applicant has not identified any other decision that is sought to be reviewed.
Respondent’s submissions
Solicitors for the respondent filed written submissions at the hearing which contained the following contentions:
Jurisdiction
a)A notice of objection to competency was filed by the respondent in the Federal Magistrates Court of Australia on 9 May 2005 on the basis that the application for judicial review was filed outside the 28 day time limit specified under s.477(1A) of the Act.
b)On 18 September 2002, the Tribunal handed down a decision affirming the decision of the delegate to refuse the applicant a protection visa. The current application was filed on 28 April 2005 and the applicant acknowledged in the application that he was notified of the Tribunal decision on or about 18 September 2002. The current application was filed well outside the 28 day period. Accordingly, there was non-compliance with s.477(1A) of the Act.
c)Insofar as s.477(1A) refers to a “privative clause decision,” Federal Magistrate Raphael dismissed the applicant’s previous proceedings and stated at paragraph 13 of his written reasons:
“The applicant has neither raised nor established any grounds under which this decision may be reviewed pursuant to s39B of the Judiciary Act (1903) (Cth). I must dismiss the application.”
d)Furthermore, on 9 September 2003, Justice Conti dismissed the applicant’s appeal and stated at paragraph 6 of the judgment:
“The Tribunal’s reasons were open to it for the reasons it gives, including the independent country information to which it refers.”
e) Further, at paragraph 7, Conti J stated that: “the appeal is utterly without merit and is dismissed.”
f)On 10 March 2005, an extension of time was not granted in relation to the applicant’s special leave application to the High Court. In this regard, Gummow and Kirby JJ held that “there are no prospects of success in the special leave application”: NACF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 136.
g)Accordingly, the Tribunal decision handed down on 18 September 2002 should properly be regarded as a “privative clause decision.” As the applicant filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no jurisdiction to hear the application.
Summary Dismissal
h)Alternatively, the respondent moved on the notice of motion filed on the 10 May 2005 and contended that the application ought to be summarily dismissed.
Res Judicata
i)The doctrine of res judicata applied to the present application because it seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review application. The substratum of facts giving rise to the right to review was the same, the substance of the proceedings was the same, the right to relief in each case was informed by the same substantive law principles and the proceedings did not differ in any material respect: see Sharma v State Rail Authority of New South Wales at 397; Taylor v Ansett Transport Industries Ltd at 354-56 per Fisher J and at 365 per Ryan J; Somanader v Minister for Immigration & Multicultural Affairs per Merkel J; Re Ruddock; Ex parte LX per Heerey J at [48]. Res judicata is a complete bar to the application and the Court had no discretion to allow the matter to continue.
Issue estoppel
j)The doctrine of issue estoppel also applied to the current application as the issues raised in this application have previously been put in issue and determined between the parties.
Anshun estoppel
k)In any event, the proceedings were at least barred by the operation of the doctrine of Anshun estoppel as the matters put forward in the current proceedings could have been put in the applicant’s earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd at 602. Anshun estoppel prevents a party from raising in new proceedings matters that properly belonged to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence: Wong v Minister for Immigration & Multicultural & Indigenous Affairs at [49]; Daniel v Minister for Immigration & Multicultural & Indigenous Affairs at [25]. All the grounds raised in the current application could have been raised in the applicant’s previous proceedings in the Federal Court. In addition, the applicant had not established “special circumstances” that would justify the Court exercising its discretion not to apply the Anshun principle: BC v Minister for Immigration & Multicultural Affairs at [22]-[30].
Abuse of Process
l)The current proceedings were also an abuse of process and ought to be dismissed pursuant to Part 13, Rule 13.10(c) of the Rules. In the current application, the applicant sought to re-agitate grounds that were, or could have been, argued in the previous proceedings dismissed in the Federal Magistrates Court, the Federal Court and the High Court. It is clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings. The applicant had ample opportunity to bring forward any legitimate claim and to inform the Court and the respondent of the nature and evidential basis for his claims, but did not do so.
m)Moreover, as the applicant’s current proceedings suffered from the same vice as the previous proceedings, namely a lack of particularity, it was open to this Court to find that it constituted an abuse of process. Having regard to the applicant’s litigation history, it was clearly open to the Court to draw the inference that the applicant had filed the present application for the collateral purpose of extending the period of his stay in Australia. Also, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter. These proceedings were a clear abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that raise no arguable case and where the applicant has repeatedly failed to advance his case in any meaningful sense.
Applicant’s submissions
The applicant indicated from the bar table that he was staying with someone who was assisting him with the preparation of his submissions but this process was being hampered as the person providing the assistance was limited in time and the applicant had insufficient resources to pay for legal assistance. The applicant requested that he be provided with more time to obtain further documentation from Bangladesh and to prepare further written submissions. The applicant stated that if he were given more time, he would be able to prepare better submissions than the brief submissions that he had already provided to the Court. There was, however, no record on the Court file of any submissions being made by the applicant. The applicant indicated that he had faxed the material to the Court but had failed to bring a copy with him to the current hearing. When asked to give further details of the filing of his written submissions, the applicant indicated that he had provided his friend with a copy who undertook to fax them to the Court.
When the applicant was asked if he had participated in the Pilot RRT Legal Advice Scheme (NSW), he indicated that he had received advice at the time of his first application to the Federal Magistrates Court.
Reasons
On 28 April 2005 the applicant filed an application for the current proceedings in the Federal Magistrates Court which contained a single paragraph under the heading of “Grounds”. Within that single paragraph the applicant pleaded:
·bad faith
·the Tribunal had deprived the applicant of natural justice
·the Tribunal denied the “evidentiary proof” of his claim
·the Tribunal’s decision did not reflect the material facts of his claim
·the Tribunal’s decision was “pre-set in the back of its mind”
·the Tribunal mixed up many facts
·the Tribunal concentrated on a particular fact, while ignoring many other facts
·the Tribunal made up its mind without enquiring
There was no particularisation in respect of any aspect of this composite ground.
This composite form of pleading was very similar to the pleadings filed by the applicant in the Federal Court in October 2002 (N1074 of 2002) and subsequently transferred to the Federal Magistrates Court (SZ1382 of 2002) which claimed that the Tribunal “has not attended any evidence in relation to the applicant’s claim”, failed to “internalise the circumstantial grounds of review application”, did not consider supporting facts and documents, ignored relevant evidence, actual bias, failed to investigate his claims and denial of procedural fairness. In the subsequent application to the Federal Court in May 2003 (N698 of 2003), in addition to the composite ground referred to above, the applicant claimed relief on the ground that his application was “very much similar” to the decision of Muin and Lie: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal. This pleading was also repeated in both applications to the High Court (S525 of 2003 and S161 of 2004). This ground based on Muin and Lie was abandoned in the current pleadings.
Each of the applications filed by the applicant was prepared with the assistance of a third party. Each application differed substantially in style and presentation but none contained any particularisation. The application to the Federal Court dated 14 October 2002 relied on extracts from a number of migration decisions but these were not linked to any specific aspect of the Tribunal’s decision and were no more than general statements of law. These grounds were considered by Raphael FM in his decision of 23 May 2003 after the matter had been transferred from the Federal Court to the Federal Magistrates Court (NACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 288).
Each of the grounds raised in the composite pleading in the application filed in this Court on 28 April 2005 had been raised and considered in the previous applications. None of the issues were particularised to assist in the identification of the alleged error in the Tribunal’s decision.
Where an applicant is a self represented litigant, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In view of the manner in which the grounds have been drafted and the absence of any particularisation or any form of affidavit evidence to assist in the identification of the alleged errors, the Court must rely upon its reading of the Tribunal’s decision to determine whether any of the alleged errors can be identified. A fair reading of the decision did not result in identification of any of these grounds.
I accepted the respondent’s submissions as set out in paragraph 9 above that the Tribunal’s decision of Mr Luke Hardy handed down on 18 September 2002 and the view of the Justices of the High Court, Federal Court and Federal Magistrates Court have not identified jurisdictional in that decision and should be properly regarded as a privative clause decision. I am satisfied that the application for a judicial review was filed outside the 28 day time limit as specified under s.477(1A) of the Act and that the Notice of Objection to Competency filed by the respondent in the Federal Magistrates Court on 9 May 2005 should be upheld.
The alternate grounds of res judicata, issue estoppel and Anshun estoppel have been successfully made out by the respondent and supported by the authorities quoted in respect of each ground. Similarly, the respondent’s arguments in respect of abuse of process, set out in paragraph 9(l) above, must be accepted as the appropriate statement of law in respect of this application.
Conclusion
For the reasons set out above, the Notice of Objection to Competency filed on 9 May 2005, should be upheld and the application be dismissed as incompetent. In addition, the Notice of Motion seeking summary dismissal of the application filed on 28 April 2005, should succeed:
a)because principles of res judicata, issue estoppel or Anshun estoppel apply; and
b)as an abuse of process pursuant to Part 13, Rule 13.10(c) of the Rules.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 6 July 2005
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