NAJZ v Minister for Immigration and Anor
[2006] FMCA 1684
•3 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJZ v MINISTER FOR IMMIGRATION | [2006] FMCA 1684 |
| MIGRATION |
| Migration Act 1958 (Cth), s. 476
|
| NAZJ v Minister for Immigration & Multicultural Affairs [2003] FMCA 471 NAZJ v Minister for Immigration & Multicultural Affairs [2003] FCA 83 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 Walton v Gardiner (1993) 177 CLR 378 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 |
| Applicant: | NAJZ |
| | MINISTER FOR IMMIGRATION & |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3603 of 2005 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 3 November 2006 |
| Date of last submission: | 3 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Nesbitt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed 8 December 2005 is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules as an abuse of process.
Alternatively the application is barred by virtue of res judicata or under the doctrine of anshun estoppel.
No further application for judicial review in relation to the decision of the Refugee Review Tribunal dated 3 February 2003 shall be received by the Registry without prior leave of the Court.
The applicant shall pay the first respondent’s costs fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3603 of 2006
| NAJZ |
Applicant
And
| MINISTER FOR IMMIGRATION & |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These reasons for decision are delivered orally. If written reasons are required a transcript will be obtained, grammatical errors corrected and minor amendments made to render these orally delivered reasons more amenable to being read.
The proceedings
By notice of motion filed 2 August 2006 the first respondent seeks an order that the applicant's application, be dismissed on the basis that:
(a) the doctrine of res judicata applies and is a complete bar to the application;
(b) the doctrine of issue estoppel applies and is a complete bar to the application;
(c) anshun estoppel applies and there are no special circumstances to justify its non-application;
(d) pursuant to part 13.10(a) of the Federal Magistrates Court Rules the proceedings have no reasonable prospects of success;
(e) pursuant to part 13.10(c) of the Federal Magistrates Court Rules the proceedings are an abuse of process.
The first respondent also seeks an order that prevents any further application from this applicant to review the decision of the Tribunal dated 3 February 2003 being lodged without leave of this Court.
These proceedings were commenced by an application filed
8 December 2005. That application was for an order that the respondent show cause as to why under s.ection476 of the Migration Act 1958 (“the Act”) a remedy should not be granted in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) on
3 February 2003.The grounds contained in that application were:
“…the Tribunal denied the applicant procedural fairness and in doing so made a jurisdictional error; the procedures that were required by the Migration Act or the migration regulations to be observed in connection with the making of the decision were observed; the Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the outdated information without any investigation, though the Tribunal was qualified to do it; the Tribunal failed to take relevant consideration into account in exercising its power to determine me as refugee; that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal; the Tribunal decision was unjust and was made without taking into account the full gravity of the circumstances and consequences of the applicant's review application.”
The application sought orders:
“…quashing or setting aside the decision made on 3 February 2003; a declaration that the decision made on 3 February 2003 was null, void, and to no effect; an order remitting the matter to the second respondent in accordance with the law; a writ of prohibition restraining the first respondent from acting on the decision of the second respondent's decision pending determination of this application; and any action on the purported decision made by the delegate on 9 March 2001; further or in the alternative an order restraining the first respondent from serving removal orders pending the determination of this application.”
None of these grounds are particularised, and as the Court has been advised this morning by Ms Nesbitt appearing on behalf of the respondent the grounds are in almost all cases similar to those grounds that were agitated before this Court in 2003, when this applicant pursued previous judicial review proceedings in relation to the same Tribunal decision.
On 5 January 2006 the respondent filed a response in the following terms:
“1.There have been other procedural review proceedings in relation to the decision that is the subject of the current proceedings. Accordingly:
(a)The applicant is estopped from bridging the current proceedings on the basis of res judicata and issue of estoppel.
(b)The doctrine of Asstrum estoppel applies and there is special circumstances to justify its non-application.
(c)Pursuant to Part 13, Rule 13.10(a) the applicant has no reasonable prospect of successfully prosecuting the proceedings.
(d)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules the proceedings are an abuse of process.”
The applicant has filed an affidavit on 13 December 2005 and an affidavit on 16 February 2006. To the extent that he sought to introduce new evidence by way of affidavit that should properly have been before the Tribunal I have explained to him that that is not appropriate in the context of a judicial review proceedings to do so.
The applicant has this morning, despite having filed his application in December of 2005; despite having acknowledged receiving the Minister's response of 5 January 2006 and despite having been present in Court on 19 January 2006 (and having consented to orders made by the Court for the further conduct of this matter) said that he wished to have further time to get legal advice and make submissions to this Court. I indicated to the applicant that I did not believe it was appropriate in the context of this particular application to further delay the hearing of the respondents notice of motion as I was satisfied he had had an ample opportunity to do both since making this application.
To the extent that I have had regard to the material put in by the applicant, that material is an amalgam of complaints about the Tribunal’s decision of 3 February 2003. The applicant has, it appears, continued to display wilful blindness to previous Court decisions and refused to accept that the decision of the Tribunal of 3 February 2003 was not attended by jurisdictional error.
Background
The respondent has filed submissions on 27 October 2006. I accept that the background to these proceedings is accurately set out in paragraphs 4 to 14 of those submissions and I adopt those paragraphs for the purposes of these reasons.
“4.On 5 February 2003, the Tribunal handed down a decision affirming the decision of a delegate of the first respondent to refuse the applicant a protection visa.
5.On 27 February 2003, the applicant filed an application for judicial review in the Federal Court of Australia, New South Wales District Registry in proceedings number N166 of 2003. That proceeding was transferred to the Federal Magistrates Court by the Honourable Justice Whitlam on
26 March 2003 and were given the proceedings number SZ533 of 2003.
6.On 21 October 2003, the Honourable Federal Magistrate Driver ordered that the application be dismissed with costs: NAJZ v Minister for Immigration [2003] FMCA 471. A copy of his Honour’s judgment is attached to these submissions.
7.On 10 November 2003, the applicant filed a notice of appeal in the Federal Court of Australia, New South Wales District Registry, seeking to appeal the orders and judgment of Federal Magistrate Driver dated 21 October 2003. The appeal proceedings were given proceedings number N1794 of 2003.
8.On 13 February 2004, the Honourable Justice Moore ordered that the appeal be dismissed with costs: NAJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 83.
9.On 10 March 2004, the applicant filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia in proceedings number S76 of 2004, seeking special leave to appeal against the judgment and orders of Justice Moore dated 13 February 2004.
10.On 9 November 2005, the Honourable Justice Gummow and Kirby ordered that the application for special leave to appeal be dismissed.
11.On 8 December 2005, the applicant filed the current application in the Federal Magistrates Court of Australia at Sydney in proceedings number SYD 3603 of 2005.
12.In dismissing the applicant’s prior judicial review application, Federal Magistrate Driver held at [6]-[8]:
6.The adverse findings against the applicant made by the presiding member were reasonably open to him on the material before him. Although it was not strictly necessary to do so, the presiding member also found that if the applicant faced a real risk of persecution based upon his claims, he could relocate within Bangladesh.
7.I accept Mr Smith’s submission that the reasoning of the presiding member was consistent with the authority of the Full Federal Court decision in Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442 per Black CJ.
8.The application for review filed on 27 February 2003 sets out nine grounds of review. The applicant has failed in these proceedings to substantiate any of those grounds. There is, in my view, no legal error and certainly no jurisdictional error committed by the RRT. The decision of the RRT is a privative clause decision and I must dismiss the application.
13.In dismissing the applicant’s appeal in the Federal Court of Australia, Justice Moore held at [9]:
I have read the decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It is not apparent to me that the Federal Magistrate erred in concluding that no jurisdictional error attended the decision of the Tribunal.
14.In dismissing the applicant’s application for special leave to appeal to the High Court of Australia Justice Gummow and Kirby held:
We have considered the parties’ written submissions and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There is no reason to doubt the correctness of the decision of Moore J. Accordingly, special leave is refused with costs.”
The respondents has also filed an affidavit of Andrea Jane Nesbitt sworn 5 January 2006 which provides a chronology of the prior proceedings and annexes the orders of each of the Court’s in relation to the previous challenges to the decision of the Tribunal the subject of this application.
Consideration of notice of motion
Turning to the issues raised in the notice of motion, in my view in the light of the previous judicial review proceedings which are set out in the affidavit of Ms Nesbitt, the present application for review of the decision of the Tribunal is barred by virtue of the application of the doctrines of res judicata or issue estoppel.
The present application seeks to re-litigate the same claim for relief that was sought in earlier proceedings. As the Full Court of the Federal Court said in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]:
“It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court.”
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. The issues in this case should properly have been raised in the previous proceedings
In this instance the applicant has already had ample opportunity in prior proceedings to raise the grounds that he now raises in relation to the Tribunal decision.
On 27 February 2003 the applicant filed an application for judicial review in the Federal Court of Australia. That proceeding was transferred to the Federal Magistrates Court, and on
21 October 2003 Driver FM ordered that the application be dismissed with costs. On 10 November 2003 the applicant appealed to the Federal Court of Australia. On 13 February 2005, His Honour Moore J ordered that the appeal be dismissed with costs. On 10 March 2004 the applicant filed an application for special leave to appeal to the High Court of Australia. On 9 November 2005, the Honourable Gummow and Kirby JJ ordered that the application for special leave to appeal be dismissed.I am satisfied that there is no reasonable justification in the context of this matter to allow this applicant to raise an issue now which properly belonged in the prior proceedings which are set out at and annexed to the affidavit of Ms Nesbitt.
The contentions and the material filed by the applicant in this matter, such as they are, are not such as to establish that special circumstances which would warrant the Court to decline to apply the principle of anshun estoppel.
Finally, even if I am wrong in relation to anshun estoppel, I am satisfied that in all the circumstances of this particular case the present proceedings should be summarily dismissed as an abuse of process consistent with the principles established in Walton v Gardner (1993) 177 CCR 378 as the continuation of these proceedings which seek to re-litigate a case which has already been disposed of, are unjustifiably vexatious and oppressive.
As I raised with the applicant this morning, his submissions amounted to no more than a continued to attempt to agitate of his claims to be a refugee. The Tribunal's decision the subject of this application has already been judicially determined and it has been held that it did not contain jurisdictional error. Given this I am satisfied it is appropriate to infer that this latest application was made for the collateral purpose of extending the applicant’s stay in Australia.
For the above reasons I am satisfied that it is appropriate to make the orders sought in the notice of motion filed 2 August 2006.
The application ought be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules as an abuse of process. Alternatively it is barred by the doctrine of res judicata or Anshun estoppel.
The respondent has applied to the Court for an order which would prevent the applicant from pursuing the respondent or the Tribunal with further applications for judicial review in relation to this particular decision. The history of the litigation in this matter, which I have referred to earlier in these reasons and is annexed to the affidavit of Ms Nesbitt, makes it clear that the applicant has not accepted previous Court decisions and cannot accept the need for finality in this litigation. I would therefore find it is appropriate as has been held in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500, to give a direction to the registry of this Court that no further application for judicial review in relation to this decision of the Tribunal should be received without prior leave of the Court.
The application before the Court, as I have said, seeks to reagitate matters that have already been decided. The affidavit of Ms Nesbitt reveals that the applicant has pursued judicial review of this Tribunal decision unsuccessfully to the highest Court in the land and now, by virtue of this application, wishes to continue to do so. Accordingly, I am satisfied, having regard to paragraphs [21] to [29] in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 that the Court has the power to make the order sought by the respondents that no further application by the applicant to review the decision of the Tribunal dated 3 February 2003 should be accepted for filing without leave of the Court.
The notice of motion filed by the respondents also sought costs.
The applicant did not wish to say anything in relation to the application for costs other than he was not able to afford to meet any costs order.
Be that as it may impecuniosity is not a sufficient reason to prevent the Court ordering him to pay the respondent’s costs in the particular circumstances of this case. In coming to this conclusion I have had regard to the history of litigation, and that I have found it was appropriate to draw an inference that this application was brought for a collateral purpose, that being to prolong the applicant's stay in Australia.
In the circumstances I am satisfied that it is appropriate to make an order that he pay the respondent's costs in the amount of $2,800.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: R. Lombardo
Date: 10 November 2006
0
4
2