S1090 of 2003 v Minister for Immigration
[2008] FMCA 1017
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1090 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1017 |
| MIGRATION – Whether there is a res judicata between the parties – whether it is an abuse of process to file and application in respect of which there is a res judicata – whether the applicant should be allowed to file any further proceedings seeking judicial review. |
| Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | APPLICANT S1090 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1134 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 July 2008 |
| Date of last submission: | 11 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Hindi interpreter |
| Counsel for the Respondents: | Mr H. Bevan |
| Solicitors for the Respondents: | Mr B. May, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1134 of 2008
| APPLICANT S1090 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By an amended response filed on 23 June 2008 the first respondent seeks orders of this Court that the proceeding before this Court commenced by way of application on 6 May 2008, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 1 July 1999, be dismissed as an incompetent or as an abuse of the process of this Court.
In support of that application, the first respondent read the affidavit of Angela Margaret Nanson, affirmed 20 May 2008, annexing the litigation history in respect of the applicant's attempts seeking judicial review in respect of that Tribunal proceeding.
On 11 April 2006, Scarlett FM dismissed the applicant's application for judicial review of the Tribunal's decision. In doing so, Scarlett FM had regard to the various grounds raised by the applicant in an application and amended application and submissions. It is apparent from the decision of Scarlett FM that grounds were raised by the applicant, including a denial of procedural fairness, an allegation of bias, a complaint that the Tribunal relied on irrelevant material, that the Tribunal made erroneous findings, that the Tribunal reached a mistaken conclusion, that the Tribunal failed to give consideration to claims made by the applicant, that the Tribunal failed to properly consider the issue of relocation and that the Tribunal failed to understand the claims of the applicant. Scarlett FM dealt with the applicant's complaints arising on the documents provided by the applicant in support of his application to the Court and concluded that no jurisdictional error was demonstrated and dismissed the applicant's proceeding.
On 8 August 2006, Tracey J of the Federal Court of Australia dismissed an appeal from the decision of Scarlett FM on the basis that no error had been found in the Federal Magistrate's decision.
In the course of his decision Tracey J had regard to a further issue raised by the applicant as to whether or not the Tribunal had exceeded its jurisdiction or failed constructively to exercise its jurisdiction, having regard to particular considerations identified by the applicant. Tracey J found that that complaint and, indeed, all other complaints made to the Federal Court by the applicant had been raised before Scarlett FM and had been disposed of.
On 27 April 2007, special leave was refused by the High Court of Australia by Gummow and Heydon JJ. In the course of the dismissal of the application for special leave Gummow J stated as follows:
“An application for judicial review by the Federal Magistrates Court was dismissed by Scarlett FM on 11 April 2006 as no jurisdictional error had been shown and each of the appellant's grounds of appeal were either unsubstantiated, misconceived or otherwise devoid of merit. In particular, there was no foundation to the applicant's allegations that the Tribunal denied him procedural fairness and acted in bad faith, nor did the Tribunal commit any error by failing to take into account the September 11 2001 attacks on the United States of America, which occurred some two years after the Tribunal's decision in 1999.
The applicant's appeal to the Federal Court was dismissed by Tracey J on 8 August 2006. His Honour concluded that no error had been shown in the Federal Magistrate's decision, and that the applicant's real complaint was that his claim had been rejected on its merits by the Tribunal. The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court. In essence, the applicant's complaint turns on the adverse credibility-based findings made by the Tribunal, but neither that nor any of the Tribunal's other findings were tainted by jurisdictional error.”
The first respondent submitted to this Court that the proceeding filed by the applicant in this Court on 6 May 2008 is incompetent on the basis that there has been a res judicata in respect of the issue between these parties as to whether or not the decision of the Tribunal dated 1 July 1999 is affected by jurisdictional error, and is therefore a privative clause decision It would clearly be an abuse of the Court’s process for an applicant to seek to litigate a matter in respect of which the defence of res judicata could be raised.
Mr Bevan, counsel for the first respondent, submitted that the grounds of review raised before Scarlett FM, including denial of procedural fairness, bias and the other grounds to which I have referred earlier in these Reasons, which could only be granted if jurisdictional error was established. Mr Bevan submitted that Scarlett FM dismissed the application having found that no jurisdictional error was established.
In the circumstances, Mr Bevan submits that that decision by Scarlett FM that no jurisdictional error had been established, was sufficient to create between the parties to that proceeding, being the same parties to this proceeding, a res judicata in respect of the issue of whether or not the decision of the Tribunal is affected by jurisdictional error.
The applicant's appeal to the Federal Court of Australia in respect of Scarlett FM's decision was dismissed, as was the special leave application to the High Court. Mr Bevan submitted that dismissal of the appeal from Scarlett FM's decision by the Federal Court and the refusal of special leave by the High Court has the result that the relevant judicial act is that of Scarlett FM. As stated above, Scarlett FM dismissed the application for judicial review of the Tribunal's decision on the basis that there was no jurisdictional error.
In the circumstances, Mr Bevan submitted that that matter has been finally determined between the parties giving rise to a res judicata. Mr Bevan referred the Court to the passage of Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 at 597, as quoted by Gibbs CJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at [17] where His Honour stated:
“The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532, in these terms: “In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, 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, decree or order.”
Mr Bevan submitted that, in the circumstances of this case, the applicant by filing his application on 6 May 2008 is now putting in suit that which was in issue before Scarlett FM, and that the former proceeding has passed into judgment so that it has merged and no longer has an independent existence. Mr Bevan submitted that, in such a circumstance, the application to this Court is incompetent and ought be dismissed as an abuse of the Court’s process.
The applicant was not represented before this Court, although had the assistance of an interpreter. The applicant was directed by this Court on two occasions to file evidence and submissions in support of his application to this Court.
At the hearing today, the applicant was invited to make submissions in response to the submissions of counsel of the first respondent and in support of his application generally.
The applicant confirmed that no documents other than the initiating application and affidavit in support have been filed by him or on his behalf in support of the present proceeding. The applicant made no relevant submission in response to those made by Mr Bevan, save to say that he was not a barrister or able to make submissions on his behalf in the way that counsel for the first respondent was able to make submissions in support of the amended response.
I accept the submissions of counsel for the first respondent that there has been a judicial determination of the question before this Court, that is, whether or not the decision of the Tribunal was affected by jurisdictional error. That judicial determination was made by Scarlett FM on 11 April 2006. Scarlett FM’s decision has been found to be without error, both by the Federal Court of Australia and the High Court of Australia. In the circumstances, there has been a final determination in respect of that issue between these parties. Accordingly, there is a res judicata that operates in respect of that issue between these parties.
In the circumstances, the proceeding filed by the applicant on 6 May 2008 is an abuse of the Court’s process and is dismissed.
The first respondent also seeks an order that the applicant be prevented from filing any further application for review of the decision of the Tribunal, dated 1 July 1999, or the decision of the delegate of the first respondent, dated 31 October 1997, without leave of the Court.
The applicant was invited to make submissions in response to that application by the first respondent, however, made no relevant or meaningful submission.
Counsel for the first respondent submitted that the Court ought to make such an order in this case, where the applicant has exhausted every right of appeal in respect of Scarlett FM’s judicial review of the Tribunal's decision. The Applicant appealed to the Federal Court and the High Court were dismissed. In the circumstances, to file an application seeking to litigate the same issue with the same party and in respect of which there is a res judicata, the order is appropriate.
Accordingly, for the Reasons referred to above I order that no further application by the applicant for review of the decision of the Tribunal dated 1 July 1999 or by the delegate of the first respondent dated 31 October 1997 be accepted for filing in this Court except with the leave of the Court.
Further, I order that the applicant pay the costs of the first respondent fixed in the amount of $4,000. I note that such sum is in accordance with the costs schedule of this Court.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 July 2008