NAIB v Minister for Immigration & Anor

[2006] FMCA 1124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1124

MIGRATION – Application for summary dismissal – application to review decisions of delegate of first respondent and Refugee Review Tribunal – prior judicial review proceedings – abuse of process.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules, r.13

A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
BC v  Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Blair v Curran (1939) 62 CLR 464
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1594
NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HC Trans 184
Somander v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
Walton v Gardiner (1993) 117 CLR 378
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Applicant: NAIB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1075 of  2005

Judgment of: Barnes FM

Hearing date: 2 August 2006

Delivered at: Sydney

Delivered on: 2 August 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. That the application of 27 April 2005 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that the proceeding is an abuse of process.

2. Further or in the alternative that the proceedings in relation to the Refugee Review Tribunal are barred on the basis of the doctrine of res judicata.

3. Further or in the alternative that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel in relation to the Refugee Review Tribunal decision and Anshun estoppel in relation to the decisions of the Refugee Review Tribunal and the delegate of the First Respondent.

4. That the Applicant pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1075 of 2005

NAIB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the court by way of notice of motion filed by the first respondent on 27 June 2006 seeking summary dismissal of an application filed by the applicant on 27 April 2005.  In his application the applicant sought review of a decision of a delegate of the first respondent on 17 November 2000 not to grant him a protection visa on the ground of “constructive failure of jurisdiction going to satisfaction: misconception of duty.”  He also sought review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 December 2002 affirming the decision of the delegate of the first respondent on grounds of “constructive failure of jurisdiction going to satisfaction: irrelevant consideration/failure to consider relevant consideration/ denial of procedural unfairness (sic).” 

2. The first respondent seeks summary dismissal on a number of alternative bases. First, pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that the proceedings are frivolous or vexatious or otherwise an abuse of process.  In the alternative it is contended that the proceedings are barred on the basis of the doctrine of res judicata or that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel and Anshun estoppel.  

3. It is necessary to have regard to the background to these proceedings.  The applicant, a national of Bangladesh, arrived in Australia in August 2000 and applied for a protection visa.  The application was refused by a delegate of the first respondent by decision dated 17 November 2000.  That decision was affirmed by the Refugee Review Tribunal. 

4. On 13 January 2003 the applicant applied to the Federal Court for review of the Tribunal decision.  It is relevant to note that the application for review filed in the Federal Court relied on generally expressed grounds of bad faith, failure to follow procedures, ignoring relevant materials, error of law, jurisdictional error, no evidence and a constructive failure of jurisdiction consisting of a failure to address the correct legal question and the Tribunal member not applying himself to the issues required to be considered. 

5. The proceedings were transferred to this court and on 31 July 2003 the application was dismissed by Federal Magistrate Raphael.  (See NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 342). Federal Magistrate Raphael considered the grounds raised by the applicant, noted the absence of particulars or written submissions, found that the reasons given by the Tribunal for not believing the applicant in his claims were based upon a reasonable assessment of those claims and country information available to the Tribunal. His Honour could not see any grounds for review in relation to that finding. He observed that the Tribunal also dealt with the applicant’s claim to fear persecution by reason of political opinion in association with his activities in the BNP. Having regard to country information and the fact that the applicant had felt himself able to return to Bangladesh after travels elsewhere, his Honour found the conclusions reached by the Tribunal appeared to be based on evidence available to it and were therefore not the subject of an application for review.

6. The applicant filed a notice of appeal in the Federal Court of Australia on 16 December 2003, asserting error in the Tribunal decision, error of law, lack of procedural fairness and bad faith.  The appeal was dismissed by Hill J on 16 December 2003 (see NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1594). In addition to finding that the applicant had not established any grounds for appeal, his Honour also considered for himself the Tribunal’s decision, finding that there was no error to be ascertained in the Tribunal’s reasons.

7. The applicant then filed an application for special leave to the High Court which was dismissed on 6 April 2005.  Hayne J indicated that there was no reason to doubt the correctness of the reasons or orders made by the Federal Court and found that an appeal to the High Court would enjoy no prospect of success.  (See NAIB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HC Trans 184). On 27 April 2005, the applicant commenced the proceedings in this court now in issue.

8. As indicated, the respondent seeks summary dismissal on a number of grounds.  It was argued first that the doctrines of res judicata and also issue estoppel are applicable, consistent with the consideration of those principles in Somander v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 because the application seeks review of the Tribunal decision that was the subject of the previous judicial review application. The doctrine of res judicata applies where the cause of action claimed in the former proceedings has passed into judgment so that it is merged and no longer has an independent existence.  Issue estoppel arises where 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.  (Blair v Curran (1939) 62 CLR 464 at 532 and see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342).

9. As stated in Somander at [52], in considering whether there is identity between the causes of action raised on the prior occasion and at present for the purposes of res judicata, it is relevant to have regard to matters of substance rather than the form of the particular pleading.  In this instance the matters that are raised in the present proceedings are in substance the same matters that were raised in the prior proceedings in relation to review of the same Tribunal decision. 

10. While the application of 27 April 2005 sets out some particulars consisting of factual matters and issues that the applicant raises he relies generally on grounds of constructive failure of jurisdiction, irrelevant consideration, failure to consider relevant consideration and denial of procedural fairness.  As set out above, these bases for review were considered in the decisions of Federal Magistrate Raphael and Hill J.  In light of the previous judicial review proceedings the present application for review of the decision of the Tribunal is barred by the application of the doctrines of res judicata and also the doctrine of issue estoppel. 

11. Even if that is not the case (because of a lack of precise equivalence between the grounds raised in each proceeding), I am of the view that the principles of Anshun estoppel apply and that the application should be dismissed on that basis.  Anshun estoppel (see in particular Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602 Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543 at 558), is to the effect that a litigant will not without reasonable justification be allowed to raise in a later proceeding a challenge which properly belonged in an earlier proceeding and was not included in it unless special circumstances exist which warrant the court declining to apply the principle.

12. In this instance the applicant had the opportunity in prior proceedings to raise the grounds that he now raises in relation to both the Tribunal decision and the decision of the delegate of the first respondent (insofar as it could be said that he did not in fact do so).  Such matters properly belong to the earlier litigation and could have been brought forward in that litigation by a party exercising reasonable diligence. 

13. In oral submissions (and there are no written submissions filed by the applicant in relation to today’s proceedings) the applicant contended that he was not abusing process, that he had problems in Bangladesh and that he wanted proper justice and a final hearing to explain his situation.  However these contentions and the material before the court are not such as to establish that special circumstances exist which warrant the court declining to apply the principle of Anshun estoppel.  (See BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221, Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21.) Insofar as the allegations in the present application were not previously dealt with, they could and should have been raised in the earlier proceedings.

14. Finally, in the alternative, even if I am wrong in relation to Anshun estoppel I am satisfied that in all the circumstances of this case the present proceedings should be summarily dismissed as an abuse of process consistent with the principles established in Walton v Gardiner (1993) 117 CLR 378 at 393. In particular, as was stated by Mason CJ and Deane and Dawson JJ at 393, proceedings before a 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. In Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Wilcox J found that relitigating the same application can be an abuse of process. His Honour observed that even if the matter was not technically a matter of res judicata or within the Anshun estoppel principles nonetheless it was an abuse of process to seek to relitigate the same claim for relief.  (Also see SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404.) I have had regard to all of the circumstances before me including whether or not the inference should be drawn that these proceedings were brought as a means of obtaining some advantage for which the proceeding was not designed or some collateral advantage beyond what the law offers.

15. I am satisfied that, as contended by the respondent, in the circumstances of this case having regard to the litigation history of the applicant and the matters raised in the prior and present proceedings, it can be inferred that the present application has been made for the purpose of extending the applicant’s period of stay in Australia.  In all the circumstances of this case given the fact that no new grounds are raised in the application in relation to the Tribunal decision and that the applicant had ample opportunity in the course of the prior proceedings to bring forward any legitimate or bona fide claim in this Court, the Federal Court and the High Court, I am satisfied that relitigating the case against the Tribunal that was already disposed of by the prior proceedings is an abuse of process and that the present application for review of the Tribunal decision should be dismissed on that basis.

16. The applicant also seeks review of the decision of the delegate of the first respondent.  This is the first occasion on which the applicant has, so far as the court is aware, sought judicial review of the decision of the delegate, despite the prior proceedings in relation to review of the Tribunal decision.  However, after the delegate’s decision the applicant sought de novo merits review by the Tribunal.  It is well established that in circumstances such as those that are before the court in this instance, if the Tribunal’s decision is not flawed it will cure defects and irregularities in the delegate’s decision such as are contended for in this case.  (See Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58.)

17. This court should not grant relief in respect of a delegate’s decision where the person affected by the decision has had the opportunity and has taken that opportunity to seek de novo merits review where the decision on review has not been shown to be flawed by error subject to correction in judicial review proceedings.  On that basis no reasonable cause of action is established in relation to the application for review of the delegate’s decision.  Moreover, I am satisfied in the circumstances of this case that, as set out above, the applicant is estopped on Anshun principles from challenging the delegate’s decision.  If the delegate’s decision was capable of being challenged the applicant could and should have sought to do so when he challenged the Tribunal’s decision in the prior proceedings. 

18. In any event, in all the circumstances of the case, in light of the prior judicial review proceedings and the delay in seeking to challenge the delegate’s decision (which was made in November 2000 the present proceedings not being commenced until April 2005) and the basis on which such challenge is asserted, I consider it can be inferred that the application has been made for the purpose of extending the period of the applicant’s stay in Australia.  It constitutes an abuse of process.  In such circumstances it is appropriate that the proceedings be dismissed. 

19. I note that the respondent also seeks orders that the applicant not be permitted to institute any proceedings in this court seeking review of the decision of the Tribunal without first obtaining leave of the court pursuant to Rule 13.11(3)(b) of the Federal Magistrates Court Rules and also any other order that the court sees fit. The written submissions seek not only that the applicant not be permitted to institute any proceedings for review of the decision of the Tribunal but also that such an order be made in relation to any application for review of the decision of the delegate. 

20. As I indicated to the legal representative for the respondent, the notice of motion is put on the basis of Rule 13.11(3)(b) of the Federal Magistrates Court Rules. However, for the court to make an order pursuant to Rule 13.11(3)(b), it must be satisfied that the person has habitually and persistently and without reasonable grounds instituted vexatious proceedings in this court against another person. Clearly where this is only the first time in which review has been sought of the delegate’s decision (albeit that that application should be dismissed on the bases that I have referred to above) these are not circumstances which come within Rule 13.11(3)(b). Nor, where there has been one prior application for judicial review, albeit that it has been pursued by way of appeal through the Federal Court and the High Court, are the circumstances such as to satisfy me that the present proceedings can be described as “habitually and persistently” instituting vexatious proceedings.

21. In the alternative it was suggested in oral submissions that an order should be made within the inherent jurisdiction of the court to restrain the bringing of further proceedings in relation to either the Tribunal or the delegate’s decision without first obtaining the leave of the court.  However, in the particular circumstances of this case and in light of the manner in which the notice of motion and the outline of submissions pursued these contentions, I am not persuaded that this is a case in which it is appropriate to make such orders. 

22. The applicant should meet the costs of the first respondent.  The amount of $3,000 is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 August 2006