NADG v Minister for Immigration

[2006] FMCA 312

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 312

MIGRATION – Refugee – application seeking summary dismissal – notice of objection to competency – application complaining of a Tribunal decision which has already been the subject of a determination before the Federal Court, Full Federal Court and the High Court – no jurisdictional error was established – the decision before me has already been conclusively determined to be a privative clause decision – repeated bringing of similar applications – abuse of process – application dismissed.

Judiciary Act 1903, s.39
Migration Act 1958, ss.474, 477(1A), 477(2), 483A
Federal Magistrates Court Rules 2001, r.13.10.

Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 561
Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 281
Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Ors (A68/2004)
Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150
SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Somanader and Others v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1192
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Walton v Gardiner (1993) 177 CLR 378
SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant: NADG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2792 of 2005

Judgment of: Nicholls FM

Hearing date: 16 February 2006

Date of Last Submission: 30 January 2006

Delivered at: Sydney

Delivered on: 16 February 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. Carter

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed in upholding the respondent’s Notice of Objection to Competency.

2. The applicant is not to file any application for review in relation to the same Tribunal decision in this Court without leave of the Court.

3. The applicant pay the first respondent’s costs set in the amount of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2792 of 2005

NADG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 30 September 2005 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) which is described in the application as having been notified to the applicant on “10 October 2002”. The matter came on before me by way of application filed by the respondent on 31 October 2005, seeking an order dismissing the application on the grounds that either the doctrines of res judicata and issue estoppel apply, or in the alternative, pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”), on the basis that the application disclosed no reasonable cause of action, further in the alternative, that the claim for relief is frivolous or vexatious or further in the alternative, that the proceeding is an abuse of the process of the Court.

2. At the hearing on 16 February 2005, I had before me:

   1)The affidavit of John Stuart Kettle, a solicitor in the employ of the respondent’s solicitors, sworn 31 October 2005, with relevant annexures.

   2)A Notice of Objection to Competency, filed 24 October 2005.

3. The affidavit of John Stuart Kettle, sworn 31 October 2005, with relevant annexures, shows that the only Tribunal decision concerning the applicant, which is now before me, has been the subject of extensive litigation. I note, for the purposes of my Judgment, paragraphs 5 to 14 of that affidavit (with references to the Annexures retained):

   “5)On 9 April 2003, the applicant filed an affidavit annexing a draft order nisi with the High Court of Australia. Those proceedings were allocated the High Court proceedings number A189 of 2003. A true copy of that affidavit is annexed hereto and marked “B”.

   6)On 11 June 2003, the Honourable Justice Hayne ordered that the application be remitted to the Federal Court of Australia, South Australia District Registry. A true copy of those orders is annexed hereto and marked “C”.

   7)On 15 March 2004, the applicant filed an amended application for an order of review. A true copy of that amended application is annexed hereto and marked “D”.

   8)On 16 April 2004, the Honourable Justice Selway ordered that the application be dismissed with costs. Annexed hereto and marked “E” is a true copy of those orders and reasons for judgment.

   9)On 6 May 2004, the applicant filed a notice of appeal in the Federal Court of Australia. Those proceedings were allocated the Federal Court proceedings number S92 of 2004. Annexed hereto and marked “F” is a true copy of that notice of appeal.

   10)On 3 November 2004, the Honourable Justices Cooper, Marshall and Mansfield ordered that the appeal be dismissed with costs. Annexed hereto and marked “G” is a true copy of those orders and reasons for judgment.

   11)On 29 November 2004, the applicant filed an application for special leave to appeal in the High Court of Australia, Adelaide Office of the Registry. Those proceedings were allocated High Court proceedings number A68 of 20054 [sic]. Annexed hereto and marked “H” is a true copy of that application.

   12)On 31 January 2005, High Court proceedings A68 of 2004 were deemed abandoned. Annexed hereto and marked “I” is a true copy of a letter dated 20 April 2005 informing the parties of the deemed abandonment of the proceedings.

   13)On 17 May 2005, the applicant filed an application for special leave to appeal in the High Court of Australia, Adelaide Office of the Registry. Those proceedings were allocated the High Court proceedings number A25 of 2005. Annexed hereto and marked “J” is a true copy of that application.

   14) On 8 September 2005, the Honourable Justices Gummow and Kirby dismissed the application for special leave to appeal. Annexed hereto and marked “K” is a true copy of those orders and a transcript of proceedings.”

   On 30 September 2005 the applicant filed an application for review of the same Tribunal decision in this Court.

4. On 24 October 2005 the respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to hear this matter on the ground that the Court lacked jurisdiction to review the decision made by the Tribunal pursuant to s.477(1A) of the Act. This provides that an application, under s.39 of the Judiciary Act 1903 and s.483A of the Act made to the Federal Magistrates Court must be within 28 days of the notification of the Tribunal decision. The Tribunal decision was handed down on 10 October 2002. The applicant concedes in his application now before the Court that he was notified of the Tribunal decision on 10 October 2002. Section 477(1A) provides for the time limit for the filing of applications pursuant to decisions which are privative clause decisions. The application before the Court now was filed on 30 September 2005, almost three years beyond the
   28 day period provided in s.477(1A) for the filing of applications for judicial review.

5. The respondent contends that the decision of the Tribunal put before me now is a privative clause decision, and has already been determined to be so by the superior Courts. In this regard I note the affidavit of John Stuart Kettle, and in particular Annexure “E” to that affidavit, being the reasons for Judgement of his honour Selway J., in the Federal Court when he considered an application relating to this same Tribunal decision (Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 561). The applicant who was legally represented before His Honour argued that there was jurisdictional error in the Tribunal’s decision. His Honour found at [11]:

   “Since no jurisdictional error has been identified the application is dismissed.”

6. I further note Annexure “F” to the affidavit being the applicant's appeal to a Full Federal Court from the decision of Selway J., and further note Annexure “G” being orders made by the Full Federal Court and the reasons for dismissing the appeal (Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 281). The Court stated at [11]:

   “Selway J held that no jurisdictional error had been identified in the appellant’s application to the Court and dismissed that application.”

   The Court dismissed the ground of appeal put forward, and further noted that it was without substance [16]:

   “In any event the appeal ground this without substance. As Selway J. observed, the RRT did take into account the possibility that the appellant may be deported to Sri Lanka from India. It observed that that fear existed from the possibility of exposure “by extortionists or other people”. However, the RRT considered the possibility was a remote one. Accordingly the presumption upon which the appeal ground is based is incorrect.”

7. The appeal Court also looked at a matter raised by the appellant’s Counsel referring “to an extra alleged jurisdictional matter”. It found that that argument also was misconceived. The Court in acknowledging Selway J.'s finding that no jurisdictional error had been identified dismissed the appeal from his decision.

8. I also note further that in dealing with an application for special leave to appeal when the matter came on before the High Court (Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Ors (A68/2004)), (Annexure “K” to the affidavit) Gummow J., said:

   “We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Court and the Full Court. There are insufficient prospects of success in any appeal to this Court from the decision of the Full Court of the Federal Court. Accordingly, special leave to appeal is refused.”

9. Proceedings before Selway J., originated before His Honour by way of an order made on 11 June 2003 by Hayne J., in the High Court that an application for an Order Nisi for a writ of mandamus, writ of prohibition and writ of certiorari, which had been sought in the High Court, was remitted to the Federal Court. The respondent submitted nonetheless that the decision of Selway J., is a final, rather than an interlocutory decision, and therefore can be seen, given the arguments set out above, to be a privative clause decision. The respondent relied on Branson J., (with whom Moore and Emmett JJ., agreed) in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 (“Applicants S61 of 2002”) at [35]:

   “In my view, resort to the reasons for judgment of Lindgren J dispels the ambiguity inherent in his Honour’s order. His Honour’s reasons for judgment contain nothing that suggests that his Honour proceeded on the basis that he was entertaining an application for an order nisi. Not only does his Honour not refer to a claim for an order nisi, he gives no consideration to the appropriate test for the grant of an order nisi. The test for the grant of an order nisi is that the applicant can show an arguable case for final relief (Re Australian Nursing Federation; Ex parte Victoria(1993) 112 ALR 177 at 183 per McHugh J). His Honour’s reasons for judgment make it plain that his Honour gave consideration to whether the appellants had established a case for the issue of writs of certiorari and mandamus and determined that they had not.”

10. The issue before the Full Federal Court in Applicants S61 of 2002 was relevantly whether the Court at first instance had determined the dismissal of the application for constitutional writs, or whether it had intended to dismiss the application for an Order Nisi. In looking at the Judgement at first instance before it, the Full Court in Applicants S61 of 2002, found that the reasons for Judgement made it plain that consideration was given as to whether the appellants had established a case for the issue of writs of certiorari and mandamus, and determined that they had not.

11. In the case before me Selway J., noted at [1] (see Annexure “E” to the affidavit of John Stuart Kettle) that the applicant before him sought prohibition, certiorari, mandamus or an injunction in relation to the decision of the Tribunal. As with the case Applicants S61 of 2002 it is very clear, with respect, that Selway J., was looking at the application before him in that context. He found that no jurisdictional error had been identified, and it is clear that this was in the context of consideration as to whether the applicant had established a case for the issue of writs of certiorari and mandamus. He determined that he had not. I agree with the respondent’s submission now that the decision of Selway J. is therefore a final, rather than an interlocutory, decision.

12. The issue therefore, is that I now have before me an application complaining of a Tribunal decision which has already been the subject of a determination before a Judge of the Federal Court who made a final decision that no jurisdictional error had been established in relation to the Tribunal decision. This was affirmed by a Full Federal Court and endorsed by the High Court. The combined effect of this is that the decision before me has already been determined to be a privative clause decision and given, at least, the Full Federal Court's finding, this finding is now binding on me.

13. In this regard I note two decisions of Driver FM: SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 (“SZCAT”) and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498 (“SZCTT”). Both decisions were upheld on appeal by the Federal Court. In both those cases, there was no doubt that the applications for judicial review had been filed well outside the prescribed time in s.477(1A) of the Act. The Court first considered the issue of whether the decision of the Tribunal was a privative cause decision and found in both matters that the Tribunal decision, having been considered previously by the Federal Court and the Full Court of the Federal Court in each case, and having found that there was no jurisdictional error in respect of each decision, that this meant that the matter, as to whether the decisions, were privative clause decisions had been conclusively determined.

14. I further note as Conti J., said in the appeal in SZCTT at [7]:

    “It is clear that the applicant has exhausted his legal rights as established at least by the judgments of four judges of this court.  The application to the Federal Magistrates Court was inferentially an abuse of process and leave to appeal on the question of competence is of the same character.”

15. In the matter before me the Tribunal decision, handed down on 10 October 2002, has already been the subject, as can be seen above, of extensive judicial review. I note that this followed the introduction of s.474 to the Act, and the Judgment of Selway J. at first instance, was made following the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157”). No jurisdictional error has been identified in the Tribunal’s decision before the Federal and Full Federal Court of Australia. I am bound by the decision of the Full Federal Court in this matter. The effect of the Judgements in the Federal and Full Federal Court is that the decision of the Tribunal, which is the subject of the application before me, has already been found to be a privative cause decision. It has been found that there was no jurisdictional error and therefore the question of whether this is a privative cause decision, or not, has been conclusively determined in the affirmation.

16. The decision of the Tribunal, as I have said, has been found to be a privative clause decision as explained by the High Court in Plaintiff S157. This means, that in the absence of jurisdictional error, s.474 of the Act operates to make the time limit in s.477(1A) of the Act effective. This section provides that in respect of a privative clause decision the Court has no jurisdiction to hear a matter unless it has been filed within 28 days of the notification of the decision. The Tribunal decision now being complained of was handed down on 10 October 2002. The application to this Court was made on 30 September 2005, well over two years after the expiry of the 28 day period. Further, I note that pursuant to s.477(2), the Federal Magistrate's Court cannot make an order which has the effect of allowing an applicant to lodge an application outside the period specified in s.477(1A) of the Act. This Court now has no jurisdiction in relation to this matter, and the application before me now must be dismissed on that basis.

17. Having determined that the Court has no jurisdiction to hear this matter it is not necessary to proceed further with the respondent’s application for orders pursuant to Rule 13.10, or on the basis of the doctrines of res judicata and issue estoppel.

18. I should just also note especially for the applicant's benefit that, even had I found that I did have jurisdiction to hear this matter, on what was before me, I would have dismissed the application summarily on the basis of at least the application of the operation of the doctrine of Anshun Estoppel (Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at [60]).

19. The application filed on 30 September 2005 puts forward the following grounds:

    1)The Tribunal asked itself the wrong question regarding persecution and did not take into consideration the applicant's oral evidence regarding persecution.

    2)A denial of natural justice.

    3)Bias or the apprehension of bias.

    4)A breach of procedural fairness requirements pursuant to the Migration Act.

    5)A failure to check the applicant's authenticity of his oral evidence [which I saw as an assertion of a failure to investigate].

    6)That further the Tribunal failed to provide an opportunity for the applicant to comment on its adverse views.

    7)Failure to consider country information properly and in particular to consider Amnesty International country information.

20. With respect to anything new that the applicant now seeks to bring forward Anshun estoppel will apply to prevent any claim that could reasonably have been made in the prior proceeding, at least in the absence of any special circumstances. Anshun estoppel operates to prevent an applicant from raising new matters that could have been raised in any earlier litigation and brought forward in the earlier litigation by the exercise of “reasonable diligence”.

21. To the extent that some of the grounds put forward now were raised in the earlier proceedings (see Annexure “D” in the affidavit of John Kettle), even in a situation where the earlier proceedings were concluded by consent did not end in an adversarial hearing, in Somanader and Others v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1192, at [36] Merkel J. stated:

    “It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest, thus such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation…”

    For the grounds res judicata and issue estoppel would apply.

1. In any event, to the extent that the applicant does seek to raise new grounds now, and in particular I note bias and apprehension of bias, the applicant has put forward three “new” claims, devoid of any particularity whatsoever and with no evidence in support. The claims could have been brought forward in the earlier proceedings. The applicant has not argued, let alone established, any special circumstances that would justify the Court exercising its discretion not to apply the Anshun principal: BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [22]-[30].

2. The applicant argues now in his outline of submissions pressed before me, that this application is “on substantially different grounds to the previous application”. The applicant argues that the special circumstances in this case that should cause the Court to exercise its discretion not to apply the principle of Anshun estoppel, are that he is a Sri Lankan citizen who holds an Indian passport and that there is no certainty that the Indian government would provide him with a passport upon the expiry of that passport. The applicant contends, at paragraph 27 of his written submissions that:

   “This is not a case of simply re-litigating of matter but to address concerns not previously addressed by the Court be it that the applicant's legal representatives did not put the matter or otherwise.”

3. The applicant's submission in this regard is not supported by his amended application for review, filed in the Federal Court of Australia (see Annexure “D” to the affidavit of John Stuart Kettle at page 3). The applicant's amended application in those proceedings makes direct reference to the statement:

   “The Tribunal accepted that the applicant entered India unlawfully and obtained an Indian passport under false pretences, however the Tribunal did not give any consideration to the possibility that the applicant could be deported by the Indian authorities to Sri Lanka if this was discovered. The Tribunal acknowledge the applicant’s concerns that he may be reported to the authorities at some future time as a person who is not entitled to Indian citizenship or residence, the Tribunal was satisfied that this is a remote possibility, however the Tribunal did not give consideration to and failed to address the issue that if this possibility eventuated that even if it was remote what the consequences to the applicant would be if the Indian authorities discovered that the applicant’s passport was obtained under false pretences it is reasonable to assume that the applicant could be deported back to Sri Lanka. This was a relevant consideration which the Tribunal failed to take into account.”

4. Clearly, contrary to the applicant's assertion now, the applicant's legal representatives did put this issue before the Federal Court. Further, it is quite clear, with respect, from the Judgement of Selway J., (see Annexure “E” of the Affidavit of John Stuart Kettle), which shows that His Honour did address the Tribunal's finding that the applicant had an Indian passport, and the applicant's fear (because of a claimed illegal entry into India) that on return to India he could be deported to Sri Lanka (see [3], [6] and [7] where His Honour makes reference to the Tribunal’s dismissing the application, including as it related to the issue of the Indian passport and the possible return to Sri Lanka). His Honour clearly looked at this issue at [8] and [9] and ultimately found that no jurisdictional error had been identified. This was endorsed by the Full Federal Court.

5. I should also indicate for the applicant's benefit again as to whether the present proceedings are an abuse of process.  The repeated bringing of similar applications where it would be vexatious or oppressive is an abuse of process.  The respondent, in submissions, has referred to His Honour Justice Wilcox, in the case of Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 where his Honour found that res judicata applied in that case, but then went on to observe [18]-[19]:

   “If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle if that be correct, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner.” 

   In Walton v Gardiner (1993) 177 CLR 378, 393 per their Honours Mason CJ and Deane and Dawson JJ, [at paragraph 22] the High Court stated:

   “Yet again, proceedings before the 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.”

6. There is a clear underlying public interest, that I ask the applicant to consider, and that is, that there be finality in litigation and that a party should not be repeatedly vexed in the same matter.  In this regard, the respondent has referred me to Justice Madgwick in the case of SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 where Madgwick J., said [29]-[30]:

   “Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”

7. The applicant's submission in this regard is simply contradicted by the material before me. Had I not dismissed on the basis as set out above this is clearly a case where I would have dismissed on the basis that the applicant could have raised all the grounds raised now (to the extent that he did not raise some grounds) in litigation before the Federal Court, Full Federal Court and ultimately the High Court of Australia. He has provided no special circumstances as to why the principles set out in the case of Anshun should not be applied in this case. There is nothing to show that the Court's discretion should be exercised to allow the matter to proceed in the face of a situation where someone has litigated, as this applicant has done, with the benefit of legal representation and now comes to the Court with what can only be described as, for the most part, repetitive assertions and with complaints that clearly cannot be made out on the material before the Court. In any event I have dismissed the application on the basis as set out previously above.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 6 March 2006