S1198 of 2003 v Minister for Immigration
[2004] FMCA 1046
•8 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1198 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1046 |
| MIGRATION – Review of Refugee Review Tribunal decision – previous litigation in Federal Court – no special circumstances – Anshun estoppel – unreasonableness – abuse of process – application dismissed. Migration Act 1958 (Cth) Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | APPLICANT S1198 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1512 of 2004 |
| Delivered on: | 8 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | Ian Archibald |
| Solicitor for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Tim Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1512 of 2004
| APPLICANT S1198 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 August 2000.
In this judgment I consider the respondent’s application that these proceedings be dismissed firstly on Anshun estoppel grounds (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) and secondly as an abuse of process.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on
16 October 1997. On 12 November 1997 he applied for a protection visa which was refused by a delegate of the Minister on 30 March 1998. The applicant then applied to the Tribunal on 24 April 1998 for review of that decision. A hearing was held on 8 May 2000 at which the applicant was present with an adviser. The Tribunal made the decision on 21 July 2000. On 3 August 2000 the Tribunal handed down its decision confirming that of the delegate.
The applicant’s claim is essentially that he fears persecution for reason of his religion in Bangladesh. His claims are summarised in the respondent’s submissions:
He claimed to be a Hindu activist and journalist, and to have suffered numerous attacks, including a forced circumcision, by fundamentalist Muslims over a twenty year period.
The Tribunal’s decision centred very much on its finding that the applicant was not a credible witness.
The application to this Court
The application was originally filed on 21 May 2004 and on 4 November 2004 an amended application was filed in which 13 grounds for review are set out. At the hearing I was informed by the applicant’s counsel that it did not propose to pursue ground 12 relating to procedural fairness.
Previous litigation
The applicant filed an application in the Federal Court in relation to the same Refugee Review Tribunal decision on 29 May 2000. In Debnath v Minister for Immigration and Multicultural Affairs [2001] FCA 27 at [3] Conti J found that from a reading of the application for review in its totality it was apparent that there were only two grounds under the statute scheme then in place under Part 8 of the Migration Act 1958 (Cth) (the Act) which had been pursued.
The first ground was that the decision was affected by fraud or actual bias. The second ground was that there was no evidence or other ground to justify the making of the decision.
In the result, Conti J dismissed the application saying that
the Applicant has failed to make good the grounds for review of actual bias and non-existence of facts upon which the RRT’s Decision can be said to have been based …
The application to the Federal Court was dismissed on 22 February 2001. No appeal was filed from the decision of Conti J.
The applicant was also involved in the Muin High Court proceedings (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). Like most others in that class action, he eventually ended up in the Federal Court and Emmett J dismissed his application and refused to grant an order nisi. The applicant sought leave to appeal which was also dismissed, this time by Jacobson J. But in accordance with undertakings given by the Minister in Muin cases to Emmett J, no point is taken in relation to the Muin proceedings by the respondent.
The respondent’s contentions
The respondent’s contentions are set out at paragraph six of her submissions:
The Applicant instituted previous proceedings in this Court challenging the Tribunal’s decision on the grounds of bias and the statutory no evidence ground in the former s 476(1)(g) of the Migration Act 1958 (the Act). Those proceedings were dismissed in Debnath v MIMIA [2001] FCA 27 (Conti J). While the Amended Application does not raise these grounds again, there appears no reason why the grounds it does raise, other than as to procedural fairness [and unreasonableness, as accepted by the respondent at the hearing as the other exception] could not have been raised in the previous application, so Anshun estoppel applies to the non-procedural fairness [and unreasonableness] grounds in the Amended Application: see Wong v MIMIA [2004] FCAFC 242. And even if no estoppel applies, the proceedings are an abuse of process as they are an attempt to relitigate a case already disposed of (and from which no appeal was brought): Walton v Gardiner (1993) 177 CLR 378 at 393; Chu v MIMIA (1997) 78 FCR 314 (FC) at 323-326. Accordingly the Amended Application should be dismissed.
Anshun estoppel
Legal principles
The relevant legal principles for Anshun estoppel are set out at paragraphs 36 to 39 of Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242:
36. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
37. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602.
38. Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
39. Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.
Application
Mr Archibald, for the applicant, accepted at the hearing that all grounds brought to this Court, apart from the grounds of procedural fairness and unreasonableness, could have been argued in the hearing before Conti J under the then Part 8 of the Act. As I noted earlier the procedural fairness ground is not pursued here.
It is clear that the Anshun estoppel principle applies. The question then is whether it was not unreasonable to omit the grounds from the earlier proceedings. This involves consideration of whether there are any special circumstances for such failure to pursue the grounds at that time.
Mr Archibald relied on a number of special circumstances individually and cumulatively. He summarised the grounds as the applicant’s lack of financial resources, the fact that the applicant was self-represented, the apprehension that the applicant held regarding a loss of confidentiality and in particular the perceived embarrassment he felt in relation to a personal matter. Mr Archibald also referred to the fact that the Minister is a statutory defendant, the impact of the later Yusuf decision ((2001) 206 CLR 323) and the fact that the respondent could be compensated by a costs order. Finally, although he did not include it in his summary, I understood him to be arguing that the nature of the proceedings going to issues concerning the life and liberty of the applicant constituted a special circumstance.
I have carefully considered these grounds for special circumstances, as they apply both individually and cumulatively to the applicant’s case. In my view, the circumstances are not so special as to amount to “exceptional” in the words of the Full Court in Wong. For example, in the applicant’s Federal Court case, Conti J found the applicant to be a well-educated and intelligent person with a reasonable command of the English language. Although he was unrepresented he had in the past had assistance from advisers, including migration agents. It is clear that he has had access to resources. The lack of representation in migration cases, in both the Federal Court and the Federal Magistrates Court, is indeed the norm and cannot amount to a special circumstance.
I am not satisfied that the grounds raised by the applicant amount to special circumstances. Therefore, none of the issues which could have been raised in the earlier proceedings should be allowed to be raised in these proceedings.
Abuse of process
Would it be an abuse of process to allow the applicant to raise the unreasonableness ground?
Legal principles
The principles relating to abuse of process are set out in a decision of the High Court in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, 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.
It has been emphasised in the relevant authorities that dismissing an application or staying it for abuse of process is an extreme remedy which is to be exercised with care.
Mr Reilly, for the respondent, principally relied on the ground that this litigation was unjustifiably vexatious and oppressive. But he has also sought some assistance from the ground which relates to the application being foredoomed to fail.
In BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 the Full Court, in reviewing the earlier decision of Sackville J had this to say in relation to some observations about jurisdictional unreasonableness. The Full Court observed that Sackville J:
… noted that the borderline between judicial review on the merits and consideration of whether a finding as to a jurisdictional fact is unreasonable in the relevant sense may be very difficult to identify. Then his Honour referred to an observation by Gummow J in Eshetu [(1999) 197 CLR 611] (at 654):
"... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.
The ground of unreasonableness raised by the applicant in his amended application is ground seven:
The decision was so unreasonable that no reasonable Tribunal would have made it.
This ground is not particularised in any way. Mr Archibald said the applicant would be relying on the same reasoning as he had for the other grounds and he would draw support from the decision of Lee J in Thevendram v Minister for Immigration& Multicultural Affairs [2000] FCA 1910.
In my view, the applicant is asking the Court to conduct merits review under the guise of the unreasonableness ground. This the Court cannot do.
Having regard to all the material and the submissions that have been placed before me by Mr Archibald, in my view this ground is, in the words of Walton v Gardiner “foredoomed to fail.”
The unparticularised unreasonableness ground is, in my view, an abuse of process and should also be dismissed.
Conclusion
I have reached the view that all grounds apart from the unreasonableness and procedural fairness grounds are subject to the doctrine set out in Anshun. There are no special circumstances that justify them being raised in this Court. The procedural fairness ground is not being pursued. The unreasonableness ground is an abuse of process.
Consequently the application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 8 February 2005
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