NBGO v Minister for Immigration
[2009] FMCA 177
•4 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBGO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 177 |
| MIGRATION – Review of decision of Refugee Review Tribunal – abuse of process – res judicata – issue estoppel – Anshum estoppel – application dismissed. |
| Migration Act 1958 (Cth), s.477 Federal Magistrates Court Rules 2001 (Cth), rule 13.03(c) |
| Applicants: | NBGO & SZLFN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 164 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 March 2009 |
| Date of Last Submission: | 4 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Appearing for the Respondents: | Ms B Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
The applicants to pay the first respondent’s costs on an indemnity basis set in the amount of $1,900.
No further application by the applicants to review any migration decision relating to their protection visa application decided on 16 October 2003 be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 164 of 2009
| NBGO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
I have before me an application made on 22 January 2009 pursuant to the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 5 April 2004, and handed down on 29 April 2004, which affirmed the decision of a delegate of the first respondent to refuse protection visaS to the applicants.
The applicants are mother and son and are both citizens of India. They arrived in Australia in August 2003 and applied for protection visa on 16 September 2003.
I also have before me an application seeking summary dismissal of the applicant’s application. This was made by way of application in a case filed on 26 February 2009 by the first respondent, and was pressed before the Court today by the solicitor for the first respondent.
The following material has been put before the Court in addition to the applications:
1)Affidavit of the first applicant (“the applicant”) made on 22 January 2009, with annexure.
2)Affidavit of Brin Ellen May Anniwell made on 26 February 2009, with annexures.
3)Response filed by the respondent on 26 February 2009.
I note that the chronology relevant to this matter is set out in the affidavit of Ms Anniwell, and for the purposes of this judgment I adopt that chronology for the purposes of that Judgment.
“The first-named applicant (“the applicant”) arrived in Australia in August 2003. She applied for a protection visa on 16 September 2003.
On 16 October 2003, a delegate of the first respondent gave a decision refusing the application for the protection visa …
On 3 November 2003, the applicant lodged an application for review of the delegate’s decision with the second respondent …
By a decision dated 5 April 2004 and handed down on 29 April 2004, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa …
On 21 May 2004, the applicant filed an application for review of the Tribunal decision in the Federal Court of Australia, NSW District Registry (proceedings number NSD 836 of 2004). That application was referred to the Federal Magistrates Court of Australia on 12 June 2004 by Registrar Mathieson. The application was given proceedings number SYG 2417 of 2004 …
On 19 July 2006 the application was dismissed with costs by Barnes FM …
On 4 August 2006 the applicant filed a Notice of Appeal in the Federal Court of Australia, NSW District Registry (proceedings number NSD 1483 of 2006). The appeal was dismissed with costs by Rares J on 16 November 2006 …
On 8 December 2006, the applicant filed an Application for Special Leave to Appeal in the High Court of Australia, Sydney Registry (S446 of 2006) …
On 22 August 2007, the applicant [the applicant’s son was also the applicant] filed an application for review of the Tribunal decision in the Federal Magistrates Court of Australia, Sydney Registry (proceedings number SYG 2595 of 2007) … On 17 September 2007, the application was dismissed by Raphael FM. On 16 November 2007, Raphael FM made an order that the applicant pay the first respondent’s costs on an indemnity basis in a fixed sum …
On 10 October 2007, the applicant filed [the applicant’s son was also an applicant] an Application for Leave to Appeal in the Federal Court of Australia, NSW District Registry (proceedings number NSD 2023 of 2007). The application was dismissed with costs by Collier J on 16 November 2009 …”
At the time of filing their application the applicants were given 9.30am, 4 March 2009 as the time and date for the first Court date in this matter.
When the matter was called there was no appearance by either applicant or otherwise on their behalf. The matter was stood down and called again later. Nearly on hour after the scheduled time when the matter was called again there was no appearance by the applicant.
Ms B Anniwell, who appeared for the first respondent, pressed that in all the circumstances the Court should proceed to a hearing pursuant to Rule 13.10(1)(e) of the Federal Magistrates Court Rules (“the Rules”) and dismiss the application pursuant to rule 13.10(c) as an abuse of the process of the Court.
The Court has before it the applicant’s application and the first named applicant’s affidavit of 12 January 2009. The first respondent has filed a response and an application in a case. Also read into evidence today was the affidavit of Ms B Anniwell of 25 February 2009 with annexures. I also have before me a letter from the first respondent’s solicitors to the first named applicant dated 30 January 2009 and addressed to the address for service, notifying the applicant of that failure to attend may result in an application for summary dismissal (respondent’s exhibit 1 – “RE1”).
There has been no appearance by the applicants today. No explanation for this failure has been put before the Court. Nor have the applicants sought any adjournment.
The Minister seeks that the matter (the application for summary dismissal) proceed today. The Rules of this Court (rule 13.03C) allow for this in the absence of a party, even at the first Court date.
In all the circumstances it is appropriate that this matter be heard today. The applicants had notice that the first Court date in this matter was today. They are not strangers to procedures before the Court. The very same Tribunal decision before the Court now has been the subject of an application twice, before by the first named applicant, and once before by the second named applicant.
Both applicants have put an appeal before the Federal Court (the first named applicant – twice) and the first named applicant has sought leave of the High Court in relation to the same Tribunal decision.
It is also appropriate that this application be dismissed pursuant to rule 13.10(c) of the Rules as an abuse of process.
This is a very clear case of an abuse of the processes of this Court. The first named applicant currently seeks to put before this Court the same Tribunal decision that has been the subject of review by a Federal Magistrate, which has then gone on appeal before a Federal Court judge. That process led to an endorsement by the Federal Court that there was no jurisdictional error in the Tribunal decision. The first named applicant then sought special leave in the High Court and was unsuccessful. Undeterred by this, the first named applicant then, joined by her son, the second named applicant, sought to re-agitate exactly the same matter before the Court, which found their application to be an abuse of process (see paragraph [6] of the judgment of Raphael FM at annexure “G” to the affidavit of Ms Anniwell).
I should also note, with reference to the application made for the second time before this Court (see annexure “F” to the affidavit of Ms Anniwell), the application now contains grounds similar to the grounds raised on the earlier occasion. (In this respect, see annexure “B” to the affidavit of Ms Anniwell.) In particular, I note that on the second occasion the first named applicant sought to have the matter heard by this Court, Raphael FM (see paragraphs [5] and [6] of his Honour’s reasons for judgment at page 59, and the annexures to the affidavit of Ms Anniwell) found that both applicants seeking to have the same matter put before the Court was a clear abuse of process.
This was endorsed on appeal before the Federal Court. If it was an abuse of process at that time, I have no hesitation, and no doubt, in forming the view that on this third occasion for the first named applicant, and second occasion for the second named applicant, the application now before the Court is also clearly an abuse of the processes of the Court.
The application now put before the Court contains grounds, couched in very general terms and, in some parts, in terms that are meaningless and lacking in any particularity. The applicants assert in very general terms “error”, on the part of the Tribunal. By that I understand to mean legal error and jurisdictional error.
Certainly, the well established principles of res judicata and, to the extent relevant, issue estoppel and Anshum estoppel, all apply in this matter and would serve to underline the abuse that both applicants seek to perpetuate before the Court.
Simply, the applicants have had a fair and reasonable opportunity to put their grievances about the Tribunal’s decision (which, I note, is now five years old), before this Court on two occasions, before the Federal Court on two occasions and even an attempt before the High Court. The repeated bringing of applications concerning the very same Tribunal decision is in itself an abuse of process of this Court.
The applicants have had a fair opportunity, and a Federal Magistrate and the Federal Court judge have determined that there is no jurisdictional error in the Tribunal’s decision. I should note that I am bound by that finding of the Federal Court.
Even if the matter were not an abuse of process, the matter should end today, if for no other reason than that there would be no reasonable prospect of success if the matter proceeded any further, given that I am bound by that finding.
In any event, I am dismissing the application today as a very clear case of abuse of process for the reasons that I have already given.
It is also appropriate in these circumstances that an order for costs be made on an indemnity basis. I will make that order in the terms set out in the Minister’s application in a case. The applicants are to pay costs on an indemnity basis set in the amount of $1,900.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 6 March 2009
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