NAMD v Minister for Immigration
[2004] FMCA 1064
•1 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMD v MINISTER FOR IMMIGRATION | [2004] FMCA 1064 |
| MIGRATION – Refugee – Migration Act – privative clause – prior litigation. |
Migration Act 1958
Ngu v the Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157 v Minister for Immigration, and Multicultural and Indigenous Affairs [2003] HCA 2
Walton v Gardiner (1993) 177 CLR 378, 393
Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306
SZBJM v Minister for Immigration, and Multicultural and Indigenous Affairs [2004] FCA 404
| Applicant: | NAMD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1912 of 2004 |
| Delivered on: | 1 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 1 December 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | NIL |
| Solicitors for the Applicant: | NIL |
| Counsel for the Respondent: | Ms. A. Radich |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application made to this Court on 21 June 2004 is dismissed on the basis of upholding the respondent's notice of objection to competency.
The applicant to pay the respondent's costs set in the amount of $3000 pursuant to rule 21.02 (2)(a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1912 of 2004
| NAMD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an application filed in this Court on 21 June 2004 seeking review of the Refugee Review Tribunal (“the Tribunal”) decision made on 26 February 2003 and notified to the applicant on
27 February 2003 which affirmed the decision made by a delegate of the respondent Minister on 7 January 2003 to refuse a protection visa to the applicant.
The applicant who appeared before me today was unrepresented and was assisted by an interpreter in the Bengali language. At the beginning of the hearing before me today when I sought from the interpreter evidence of accreditation as an interpreter, he advised that he had no such accreditation but had applied for accreditation. In those circumstances, I gave the applicant an opportunity as to whether he wished to proceed and he indicated that he wished to do so. I also note that during the course of the hearing before me today the applicant did not express any difficulties, nor were any apparent, in relation to the standard of interpretation.
On 28 September 2004 the respondent filed a Notice of Motion supported by an affidavit sworn by a solicitor in the employ of the respondent's solicitors, Angela Louise Radich, who also appeared before me today, seeking summary dismissal of this application pursuant to rule 13.10 of the Federal Magistrate Court Rules on the basis that the proceeding is frivolous or vexatious or otherwise an abuse of process. The respondent also seeks an order that the applicant not be allowed to institute proceedings against the respondent in relation to the same Tribunal decision that is the subject of the application to this Court without leave of the Court pursuant to rule 13.11(3)(b) of the Federal Magistrate Court Rules.
On 22 October 2004, the respondent also filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this application on the basis that the Tribunal decision was a privative clause decision and the application to this Court was filed outside the required statutory period applicable to such decisions. Section 477 (1A) of the Migration Act relevant to this Notice provides that an application to this Court under s.483A of the Act, in respect of a privative clause decision for which jurisdiction is not excluded by s.476 of the Act, must be made to the Court within 28 days of the notification of the decision.
Annexed to the affidavit of Ms. Radich (to which I have already referred as having been filed in support of the respondent’s Notice of Motion) at annexure “A” is a copy of an application, made by the applicant before me, filed in the Federal Court of Australia on 27 March 2003. That application was made in respect of the same Tribunal decision which is the subject of the application before me. The applicant sought writs of prohibition, certiorari and mandamus and an injunction preventing the respondent from taking any steps pursuant to the Tribunal decision. He also sought costs and any other order that the Court saw fit to make.
The applicant set out ten grounds of the application which are reproduced at pages 4 and 5 of the annexures to the affidavit of Ms Radich. The matter was considered by his Honour Justice Allsop who on 18 August 2003 dismissed the application. In relation to these grounds his Honour said, [see annexure “D” of the affidavit of Ms Radich at pages 28 and 29, paragraph 4]:
“Notwithstanding the width of the apparent grounds, it would appear that the only particularised ground is the failure to adjourn the hearing.” [that is the hearing before the Tribunal].
At paragraph 19 (page 31 of the annexures to the affidavit of Ms Radich) His Honour also said:
“I do not see any error of principle in the approach of the Tribunal. Furthermore, s422B of the Migration Act makes clear that the Division of the Migration Act (Cth) in which it appears is exhaustive of the requirements of natural justice. There is no assertion that by refusing an adjournment on material which was open to the Tribunal so to act, that there was otherwise a breach of any statutory provision, in that Division or otherwise in the Act.”
As to the other grounds, his Honour said: [at paragraph 19, page 31 of the affidavit]
“The grounds of the application which I have set out above are singularly unhelpful in identifying any particularity of complaint. They are what might be referred to as usual allegations of lack of jurisdiction.
Of themselves they tell one nothing as to why there was jurisdictional error, as to why there was a constructive failure of jurisdiction, as to why the Tribunal failed to perform the duty imposed on it to decide the applicant's case on the material put to it and why as I have said earlier there was a lack of bona fides.”
In relation to the one particularised ground, his Honour found no error on the part of the Tribunal. He also examined the Tribunal's reasons for any other apparent error and said: [at annexure “D” at page 33 of the affidavit at paragraph 30]:
“I do not ascertain any apparent error of approach, jurisdictional or otherwise of the Tribunal in its treatment of the material. I see no error in the approach by way of principal of the Tribunal in handling the application of the adjournment. I see no basis to conclude that the question of the adjournment or any other matter vitiated the Tribunal's decision to warrant any intervention whatsoever under s 39B of the Judiciary Act (1903) Commonwealth or any other basis of relief which could be conceivably mounted.”
On 5 September 2003, the applicant filed an appeal from the judgment of His Honour Justice Allsop [see Annexure “E” to the affidavit of Ms. Radich, and pages 35 to 36]. The Full Federal Court found per Spender J [with whom Hely & Bennett JJ agreed] [see annexure “G”
of the aforementioned affidavit at page 40]:
“No material has been put in support or to substantiate those assertions or allegations. There has, in truth been no prosecution of the appellant's appeal. In the circumstances there is nothing before the Court to suggest any error of any kind in what was done below. In those circumstances, the appeal should be dismissed with costs.”
On 25 November 2003 the applicant filed an application for special leave to appeal to the High Court. This application was deemed, on 25 May 2004, abandoned due to the applicant's failure to comply with the High Court Rules. [see Annexure “I” to the affidavit of Ms. Radich at page 45]
In the substantive application before me today, the grounds are:
“1. That the Tribunal is bound to accord procedural fairness in reaching its decisions and a failure to accord procedural fairness will lead to jurisdictional error, which is not protected from review by the privative clause.
2. The Tribunal exceeded its jurisdiction in failing to accord the applicants [sic] procedural fairness as required under s.424A(1) and s.418(3) of the Migration Act 1958.
3. Refugee Review Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the applicant if he returned. By not dealing with the matter there was a constructive failure to exercise jurisdiction on the part of the tribunal, or error of law and or lack of procedural fairness.
4. That a breach of the rules of natural justice occurred in connection with the making of the decision.”
There is no amended application nor any written submissions by the applicant before me. Grounds 1 and 4 are, as Justice Allsop said in relation to the grounds before him, singularly unhelpful in identifying any particularity of complaint. Grounds 2 and 3 contain some specificity, but in the absence of any further supporting material, evidence, argument or reference, lack particularity.
The respondent Minister, as I have previously stated, has put before the Court a Notice of Motion seeking dismissal pursuant to rule 13.10 of the Federal Magistrates Court Rules, and subsequently a Notice of Objection to Competency. I sought clarification from Ms Radich for the respondent, as to the order in which the two Notices were pressed on behalf of the respondent. She submitted the respondent sought to pursue the Notice of Objection to Competency and that the Notice of Motion was pursued in the alternative should the Notice of Objection to Competency not succeed. I indicated to her, and she responded that she understood, that I would not be able to go to the issue of the matter of the order restraining the applicant from making further application without leave of the Court if I were to uphold the objection to competency, and therefore did not go on to consider the Notice of Motion.
I turn first then to the Notice of Objection to Competency. The recent case of Ngu v MIMIA [2004] FCAFC 21, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision, lodged outside the time limits in s.477 of the Migration Act is incompetent if a ground of review cannot be made out pursuant to the High Court’s judgment in Plaintiff S157 v MIMIA [2003] HCA 2. Therefore if the Tribunal's decision in the case before me is a privative clause decision pursuant to s 474 of the Act then the time limit under s.477(1)(A) of the Act would apply. Following s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days.
The issue therefore, of whether the respondent's Notice of Objection to Competency should be upheld or not, turns on whether the decision complained of is a privative clause decision or not. I have before me the affidavit and annexures of Ms Radich, to which I have already referred. The Tribunal decision complained of before me, involving the same parties, was before the Federal Court, and was before the Full Federal Court. The effect of the Federal Court and the Full Federal Court decisions on whether this is a privative clause decision or not, is that this issue has already been conclusively determined. The Tribunal decision has been found to be a privative clause decision. The application before me was not filed within 28 days of the date of notification to the applicant, as required by s.477 of the Act. As a result of this the Notice of Objection to Competency must be upheld. On that basis I uphold the Notice of Objection to Competency and I must dismiss the application for judicial review filed in this Court on 21 June 2004.
Having dismissed the application on that basis it is not necessary to determine the matters raised in the Notice of Motion by the respondent. But in a case such as this, where the applicant is unrepresented and where there has been an application to this Court, the subject matter of which has already been thoroughly investigated by two superior Courts, I should give some indication, for the applicant's benefit, as to some of the matters raised in the respondent's Notice of Motion. In that Notice of Motion the respondent asks that the application be dismissed as frivolous, vexatious or an abuse of process, pursuant to Rule 13.10 of the Federal Magistrates Court Rules.
In the case before me the same Tribunal decision with the same parties has been litigated in the Federal Court and the Full Federal Court. At first instance the Court found no jurisdictional error. The Full Federal Court said there was nothing before it to show error in what the Court at first instance had done. The grounds in the application before me were not particularised and to the extent that grounds 2 and 3 appear to assert different grounds to the ones previously before the Federal Court the applicant has provided no evidence or explanation as to why these matters could not have been raised in the previous proceedings. The applicant clearly has had an opportunity to raise these matters that he now sought to agitate before me.
The principles of res judicata, issue estoppel, Anshun estoppel and abuse of process apply to administrative law cases. In this regard the respondent in written submissions has referred me to the case of Walton v Gardiner (1993) 177 CLR 378, 393 where their Honours Mason CJ and Deane and Dawson JJ said, importantly for the applicant to note [at paragraph 22]:
“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.”
Subject to what I have described as the broad and unparticularised nature of what the applicant brought to this Court [which makes it difficult to identify exactly what is complained of] by way of grounds in relation to claims that have already been made, res judicata and issue estoppel would operate to prevent them from being brought again. Again for the applicant's benefit, res judicata applies to any cause of action determined in substance between the parties in the original proceeding. Issue estoppel applies to any issue necessarily decided in the prior proceedings. But with respect to anything new that the applicant now seeks to bring forward I agree with counsel for the Minister in relation to grounds 2 and 3 that Anshun estoppel will still apply to prevent any claim that could reasonably have been made in the prior proceeding, at least in the absence of any special circumstances.
I gave the applicant before me today a specific opportunity to respond to that point. He was unable to provide any reason.
To the extent that the application brought before me by the applicant may raise arguments that were not raised in the earlier proceedings – as I have said, he is faced with Anshun estoppel. There is no evidence or material before me to show, nor is there any reason evident, as to why these arguments were not raised at the earlier proceedings. The applicant says he was not legally represented, but I note that, with respect, Allsop J looked at the Tribunal decision in its entirety and the applicant still came to this Court with no legal representation. The applicant should note that there are no special circumstances put before me that would have prevented the application of the Anshun estoppel principle.
I should also indicate for the applicant's benefit 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 MIMIA [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.”
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 v MIMIA [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.”
In all the circumstances, had it been necessary for me to decide on this point, the applicant should note that for all the reasons that I have outlined above and in applying the principles in the cases to which I have been referred, the application that this applicant brought to this Court would be an abuse of process and the continuance of this application, if I may, with respect, paraphrase the High Court, would be unjustifiably vexatious for the reason that it is sought to litigate anew a case which has been disposed of by earlier proceedings.
I also received submissions from the respondent on the issue of "vexatious" in terms of whether a collateral purpose could be inferred from all the circumstances in this case and, in this regard, I can look to the number of proceedings, that is, proceedings before the Federal Court and appeal to the Full Federal Court, a subsequent taking of the matter to the High Court, which was abandoned due to the applicant's failure to observe relevant rules, the applicant's attempt to start a re-agitation of this matter from the beginning, the applicant's inability before me today to indicate any valid reason and, in this regard, the applicant has sought from me today what he said was one more chance - that he would go to a solicitor and that he would be very cooperative in that - in circumstances where there has been a lengthy litigation history, where the applicant had opportunity to seek legal advice, did not do so and now seeks further delay by asking for one more chance without providing any reason does not, in my view, amount to an acceptable excuse by the applicant and, in any event, all of those circumstances would, in my view, provide the basis for a finding that this application would have been vexatious.
In any event, I have already dismissed the application on the basis of upholding the respondent's objection to competency.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 25 January 2005
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