NADZ v Minister for Immigration - [2005] FMCA 759

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADZ v MINISTER FOR IMMIGRATION

[2005] FMCA 759

MIGRATION – RRT decision – Bangladeshi claimed persecution due to political association – disbelieved by Tribunal – previous unsuccessful judicial review proceedings – appeals discontinued – no basis shown for fresh proceedings – application dismissed as abuse of process – no further application to be filed without leave.

Migration Act 1958 (Cth), s.424A(1), 424A(3)(a), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Blair and Others v Curran and Others (1939) 62 CLR 464
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 118
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242

Applicant:

NADZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 770 of 2005

Judgment of:

Smith FM

Hearing date:

27 May 2005

Delivered at:

Sydney

Delivered on:

27 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr Carter

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Substantive application dismissed under R.13.10(c) as an abuse of the process of the Court.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 23 October 2002 reference N00/34587 shall be accepted for filing without prior leave of the Court.
Applicant to pay the respondent's costs in the sum of $3900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 770 of 2005

NADZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this matter there is before the Court a notice of motion filed by the respondent on 28 April 2005 seeking orders that the application brought by the applicant be dismissed under Federal Magistrates Court Rule 13.10(c) on the ground that “the proceeding is an abuse of the process of the Court”.
The respondent also seeks costs and an order that the applicant not be permitted without leave of the Court to file another application in this Court seeking review of the Refugee Review Tribunal decision which is the subject of the current proceedings.
The substantive application brought by the applicant was filed on

30 March 2005, and was given a first Court date before a Registrar on 12 April 2005. On that occasion, the respondent foreshadowed her motion, so that the applicant has been on notice of the respondent's contention that the proceeding is an abuse of process since that time. The motion itself was given a return date before me on 9 May 2005, and the applicant appeared on that occasion. I adjourned the hearing of the motion until today, and the applicant can have been under no misapprehension that it would proceed today. The notice of motion and the evidence in support of it, including the respondent's outline of submissions, had been served on the applicant prior to 9 May.
The applicant's challenges to the decision of the Tribunal have a long history. The decision of the Tribunal which is under challenge was given on 23 October 2002, and affirmed a decision of a delegate refusing an application for a protection visa which had been lodged by the applicant on 21 June 2000.
The respondent's affidavit in the current motion attaches the Court Documents prepared for a previous proceeding. These include the Tribunal's decision. Briefly, the applicant was a national of Bangladesh who claimed that he had been a local leader of the BNP political party. He claimed that, following the death of an Awami league member in his area in January 1995, he had been falsely charged with murder. He claimed that he had been wrongly convicted of murder in his absence, had been pursued by Awami league members who had assaulted him, had gone into hiding, and had eventually fled the country in February 1996.
The Tribunal's decision assessed his claims, including his evidence at an oral hearing which he attended in September 2002. It based its decision firmly on grounds of credibility. It said at the start of its findings and reasons:
The Tribunal has grave concerns regarding the applicant's reliability as a witness. His claims and evidence are implausible and his evidence at hearing was internally inconsistent and contradictory. In fact, given the range of inconsistencies and the inherent implausibility in his claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in his claims of evidence, and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.
Further information concerning the applicant's claims for protection and the Tribunal's reasons can be found in the judgment of Hely J given on 28 February 2003 in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 118. In that judgment, his Honour gave reasons for dismissing an application for judicial review under s.39B of the Judiciary Act 1903 (Cth) brought by the applicant in relation to the Tribunal's present decision. His Honour did this in final orders after hearing the applicant who had appeared in person.
The applicant's application in that proceeding contained the following grounds:
(a) The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Muin, Lee’s case).
(b) The RRT decision was affected by an ‘Error of law’ and ‘Jurisdictional error.’
(c) There was no evidence or other material to justify in making of the decision.
His Honour's judgment should be understood to have dealt with those three claims. His judgment indicates that the argued particulars of the grounds did not appear with clarity, and that the applicant had lodged 12 pages of written submissions in support of his application.
In the course of his Honour’s judgment disposing of the application, he specifically rejected arguments that there was denial of procedural fairness in a manner akin to that found in Muin v Refugee Review Tribunal (2002) 76 ALJR 966.
His Honour also expressly addressed a contention that there had been a denial of procedural fairness attending the Tribunal’s refusal to give evidentiary weight to documentary evidence which had been put before the Tribunal, consisting of what were claimed to be originals of a charge sheet, an arrest warrant, a Court judgment and a first information report concerning the alleged false charge. His Honour said:
Nothing was put in the written submissions or orally, which could conceivably establish a want of procedural fairness by reason of any supposed failure to alert the applicant to the substance of any documentary information which would be adverse to the applicant's case. The documentary information in the possession of the RRT which was adverse to the applicant's case was information in relation to document fraud. That information was specifically communicated to the applicant at the hearing, and his comments on that information invited.
His Honour also rejected the contention that the Tribunal had ignored relevant evidence. His Honour dismissed the application with costs.
On 17 March 2003 the applicant filed a notice of appeal to the Full Court of the Federal Court of Australia. The grounds of the appeal were:
2. His Honour failed to find denial of natural justice and procedural fairness made by the RRT.
3. The Tribunal did not consider any supporting documents in relation to my protection visa claim.
It appears that the appeal was set down for hearing in August 2003, but on 30 June 2003 the applicant filed a notice of discontinuance.
Almost immediately thereafter he commenced fresh proceedings in the Federal Court of Australia in its South Australia Registry. On 1 July 2003, an application was filed in matter S577 of 2003 by a solicitor, Mark Clisby, acting for the applicant. It is framed as an application “under the Commonwealth Constitution, the Judiciary Act 1903 and Migration Act 1958”, and specifies as the grounds for the application a list of judicial review grounds in sweeping terms but entirely without particulars. No attempt was made to identify any ground which had not previously been dealt with by Hely J.
Justice Mansfield on 29 October 2003 directed the applicant to file various documents to give specificity to the grounds for review, but his orders were not complied with. On 6 February 2004, Selway J dismissed the proceedings for failure to comply with the orders made by Mansfield J. His Honour ordered the applicant to pay the respondent's costs.
On 1 March 2004 the applicant filed an application for special leave in the High Court of Australia, given the number A14 of 2004.

It purported to seek special leave to appeal from the judgment of Selway J, however the grounds appear to repeat the claims which had already been put to Hely J and had been expressly refused by his Honour, as well as making a jumble of other general allegations of jurisdictional errors.
The proceedings in the High Court proceeded with the filing of a summary of argument by the applicant on 13 August 2004. This argued that “the RRT denied my procedural fairness in a manner akin to be found in Muin v The Refugee Review Tribunal”, as well as making other contentions. A draft notice of appeal was filed at the same time, with two grounds:
1. The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act. The tribunal’s decision and its findings was contradicting independent evidence constitutes jurisdictional error, error of law and breach of procedural fairness (Muin Vs Refugee Review Tribunal, Lie Vs Refugee Review Tribunal).
2. The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness, as required under section 424A(1), section 418(3) of the Migration Act 1958.
The respondent was put to the expense of filing a summary of argument in response to the applicant's documents, but on 3 March 2005 the applicant filed a notice of discontinuance in the High Court.
Within weeks of discontinuing his appeal the applicant commenced fresh proceedings in this Court, being the current application filed on 30 March 2005.
I shall not recite the whole contents of the application. It says that it is made under s.39B of the Judiciary Act and seeks writs of the nature of mandamus, certiorari and prohibition. It asserts that the decision of the Tribunal “is not a decision made under the Migration Act 1958. The decision of the Tribunal is affected by jurisdictional error.”
There are then general assertions of a similar sort, and particulars are given of an argument that:
There was a fallacy of formal logic in the finding at law by the Tribunal as to the availability of protection to the applicant from persecution for political opinion through the courts of Bangladesh and subsequently the finding in law that the application did not have a well founded fear of persecution.
The argument that is sought to be raised by this document is unclear, and I have doubts whether it can be given any relevance to the present Tribunal’s decision at all. It appears to have been adopted from somebody’s argument in another case, since on my reading of the Tribunal’s reasons, they did not include a finding that the applicant had available protection from the Courts in Bangladesh. Rather, as I have indicated above, the Tribunal reasoned by disbelieving the applicant's claim to have ever been subject to a false charge.
Shortly before today's hearing, the applicant filed a further document entitled "applicant's written submissions". This again appears to me to have been adopted from a lawyer's argument presented in a different case. It is difficult to find any applicability to the present matter, but I shall briefly sketch the three “grounds” which it attempts to argue, and why I consider that they lack any apparent merit.
“Ground 1” in the written submission, argues that there was a denial of procedural fairness by the Tribunal “in not seeking to have the arrest warrant and charge sheet examined by the documents' examination unit of DIMIA.” It also argues a breach of procedural fairness and breach of s.424A(1) by reason of the Tribunal failing to put to the applicant the country information about false documents.
On the material before me, neither of those contentions has any merit. The first contention is inconsistent with well established authority that the Tribunal has no duties of inquiry of the sort alleged (e.g. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and cases cited). The second contention is inconsistent with the construction of the exemption provision in s.424A(3)(a) given by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.
“Ground 2” argued in the written submission is that:
The Tribunal had no evidence upon which to base the finding that the documentation was not genuine and subsequently used a formal fallacy of logic to arrive at that conclusion.
However, there is no substance in this argument, since the present Tribunal did not proceed in the manner argued. That is, it did not follow reasoning which the author of this document claims would have been fallacious. Rather, its conclusion about the falsity of the documentation tendered by the applicant was the result of the Tribunal's assessment of all the relevant evidence concerning the applicant's credibility, including aspects of the documents themselves.
“Ground 3” argued in the written submission is that:
In so far as the decision of the Tribunal was based upon the requirement or expectation that the applicants take reasonable steps to avoid persecutory harm, it is wrong in principle and should not be followed.
However, no part of the present decision of the Tribunal is so based.
I have addressed the merits of these arguments raised by the applicant in his written submission, because this document is all that he has presented to the Court in justification of being allowed to start a third proceeding. He has not presented any evidence or argument seeking to explain why these arguments could not reasonably have been raised and pursued in the previous proceedings before Hely J, the Full Court, Mansfield J or the High Court (assuming that they were not so raised), nor why he should be allowed to raise them in the current proceedings. He has not sought to address the issues relevant to the respondent’s present motion based on principles of Anshun estoppel and res judicata.
It is enough for me to say that on my brief assessment of the arguments which he now wishes to raise to show jurisdictional error by the Tribunal, I consider that “it would be unreasonable” for the applicant not to have raised them in the earlier proceedings, and that there are no “special circumstances that prevail to permit” the applicant to raise them in the subsequent proceeding (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 as discussed and made applicable to proceedings such as the present in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [37-9], [66]).
As their Honours indicate in Wong (supra) the doctrine of Anshun estoppel prevents the commencement of a fresh proceeding for judicial review, even where it seeks to raise arguments which had not been pursued in previous judicial review proceedings. The doctrine is based upon the principle that there should be finality in litigation and that where somebody could be reasonably expected to put forward all their arguments in a proceeding they should not be permitted to bring fresh proceedings, in the absence of special circumstances. As their Honours indicate: “The doctrine is based on questions of abuse of process” (see [66]).
In the present case, the applicant has not put forward any evidence or argument that he could not reasonably have raised in his previous litigation the present grounds he seeks to argue. He has not shown special circumstances which would allow me in my discretion to allow issues not previously raised now to be raised in third proceedings.

In the course of today's hearing I drew his attention to these issues, and he did not address me relevantly in response. Rather he sought to rely on the documents which had been filed, and which he could not explain. He also sought more time to file further documents, but as I indicated to him I consider he has had ample time to understand and reply to the respondent's present motion.
I therefore consider that the present application is an abuse of process, and is doomed to failure by reason of principles of Anshun estoppel.
I also consider that his application is doomed to failure on principles of res judicata and issue estoppel, by reason of the judgment of Hely J. This was a final judgment on claims for judicial review which, noting their unconfined allegations of jurisdictional errors, may reasonably be understood as encompassing the grounds now sought to be argued in the present proceeding. A further necessary consequence of his Honour’s dismissal of these allegations, is that his Honour's judgment may be understood as containing a finding that the present decision of the Tribunal was not affected by jurisdictional error and therefore is a privative clause decision for which relief is barred by ss.474(1) and 477(1A) of the Migration Act. On either of those analyses, the present application must fail on principles of res judicata and issue estoppel (see Blair and Others v Curran and Others (1939) 62 CLR 464 at 531-2).
For the above reasons, I consider that the respondent has established that the continuance of the proceeding would be an abuse of the process of the Court. I consider that in the circumstances it is appropriate to exercise my power of summary dismissal.
I also consider that the history sketched above shows a clear disposition on the part of the applicant to commence and pursue proceedings for judicial review without regard to their merit, and without regard to previous judicial determinations in relation to the arguments which he presents. I consider that any further proceeding of the applicant commenced by way of a fresh application filed in this Court in any of its Registries would be vexatious to the respondent.

I consider that it is appropriate for me to direct the registry not to receive any further application for judicial review in relation to the present decision of the Tribunal without first obtaining the leave of the Court. The Court's power to make such an order has been upheld by Jacobsen J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29].

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 8 June 2005