S1278 of 2003 v Minister for Immigration
[2004] FMCA 899
•29 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1278 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 899 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Minister’s motion for summary dismissal – estoppel and abuse of process – previous judicial review proceedings dismissed – no substance to new ground of asserted bad faith. |
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.474, 476, 477
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Applicant S1174 of 2002 v Refugee Review Tribunal [2004 FCA] 289
BC v Minister for Immigration [2002] FCAFC 221
Daniel v Minister for Immigration [2004] FCA 21
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Wong v Minister for Immigration [2004] FCA 51
| Applicant: | APPLICANT S1278 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG800 of 2004 |
| Delivered on: | 29 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 November 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms A Gibson Sparke Helmore |
INTERLOUCTORY ORDERS
The application for judicial review filed on 18 March 2004 be dismissed summarily, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) and in accordance with the principles of issue estoppel and Anshun estoppel.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
Any further application by this applicant to review the decision of the Refugee Review Tribunal made on 30 June 2000 and handed down on 18 July 2000 is not to be accepted for filing, except by leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG800 of 2004
| APPLICANT S1278 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion, of which notice was given on 11 June 2004 by the respondent Minister. The Minister seeks the summary dismissal of an application for judicial review filed on 18 March 2004. That judicial review application, in turn, sought a review of a decision of the Refugee Review Tribunal (“the RRT”) made on 30 June 2000 and handed down on 18 July 2000.
The Minister seeks the summary dismissal of the judicial review application on the basis of the principles of res judicata, issue estoppel, Anshun estoppel and abuse of process. In support of the motion, Ms Gibson, for the Minister, read an affidavit by Katie Jane Bryant made on 7 June 2004. Ms Gibson also relied upon written submissions prepared by Ms Rayment on behalf of the Minister. There is annexed to those written submissions a useful chronology. I adopt that chronology as background for the purposes of this judgment:
1 January 1966 Applicant born in Bangladesh 5 September 1997 Applicant arrived in Australia DIMIA 18 October 1997 Applicant lodged application for protection visa 4 April 1998 Delegate of respondent refused application for a protection visa RRT N98/22830 28 April 1998 Applicant applied to RRT for review of delegates decision 22 June 2000 RRT hearing 30 June 2000 RRT affirms delegate’s decision Federal Court N895/ 2000 17 August 2000
Applicant lodges application for judicial review in Federal Court. 5 March 2001 Hearing before Hill J 5 March 2001 Hill J dismisses application High Court S89 16 August 2000 Applicant joined as part of Lie class action (S89 of 1999) 25 November 2002 Gaudron J makes orders dismissing class action High Court S1278 of 2003 29 May 2003 Affidavit of Adrian Joel annexing copies of delegates decision, RRT decision and draft order nisi 29 May 2003 Matter remitted to Federal Court Federal Court N1342 of 2003 9 February 2004 Directions hearing 20 February 2004 Application for an order nisi refused by Emmet J
Federal Magistrates Court SZ800 of 2004 18 May 2004
Applicant lodges application for judicial review of RRT decision in Federal Magistrates Court
I also adopt, as background, the following extract from the Minister’s written submissions:
The applicant arrived in Australia on 5 September 1997. On 21 October 1997, he applied for a protection visa. On 4 April 1998, a delegate of the respondent refused the application and on 28 April 1998 the applicant applied to the RRT for review of that decision.[1] On 18 July 2000, the RRT handed down its decision affirming the decision of the delegate to refuse to grant the applicant a protection visa.[2]
Previous proceedings
On 17 August 2000, the applicant filed an application for judicial review in the Federal Court of Australia seeking review of the RRT decision handed down on 18 July 2000.[3] On 5 March 2001, the Honourable Justice Hill heard the application for judicial review and made orders dismissing the application with costs.[4]
On 17 August 2000, the same day that the applicant commenced proceedings in the Federal Court, his former solicitor lodged an amended statement of claim in High Court proceedings number S89 of 1999 in relation to the RRT decision handed down on 18 July 2000. That amended statement of claim joined the applicant as a party to those proceedings.
On 25 November 2003, the Honourable Justice Gaudron made orders dismissing proceedings S89 of 1999.[5] Her Honour also gave liberty to the joined parties to file individual applications for order nisis in the High Court on or before 30 May 2003. These individual applications would then be remitted instanter to the Federal Court.
On 29 May 2003, the applicant’s former solicitor filed a draft order nisi and accompanying affidavit in the High Court of Australia seeking review of the Tribunal decision handed down on 18 July 2000.[6] Those proceedings were remitted to the Federal Court and were given Federal Court proceedings number N1342 of 2003. On 20 February 2004, the Honourable Justice Emmett made an order refusing the order nisi in these remitted proceedings.[7]
[1]Affidavit of Katie Jane Bryant affirmed 7 June 2004 (“Affidavit”), annexure “F” p.49
[2]Affidavit, annexure “F” p.48
[3]Affidavit annexure “A” pp. 4 - 7
[4]Affidavit annexure “B” p.8
[5] Affidavit, annexure “D” pp 32 – 34.
[6] Affidavit, annexure “F” pp 37 – 68.
[7] Affidavit, annexure “G” p69
A notice of objection to competency was also filed in these proceedings on 5 April 2004. In that notice, the Minister asserted that the court has no jurisdiction to review the decision of the RRT because of the operation of s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”). Ms Gibson told me today that that objection to competency was not pressed. The reason is instructive. The Migration Act was amended in 2001 to insert the privative clause in s.474 and also the present time limit on judicial review applications in s.477. Transitional provisions were made in the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Act No 134 of 2001. The operation of the new provision was dealt with in schedule 1 to that Act.
Clause 8 of that schedule relevantly provides as follows:
1.If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975, and the Administrative Decisions (Judicial Review) Act 1977 as in force immediately before that commencement apply in respect of the application, and in respect of the review as if this schedule had not been enacted.
2.The Migration Act 1958 and the Administrative Decisions (Judicial) Review Act 1977 as amended by this schedule apply in respect of a judicial review of a decision under the Migration Act if:
(a) the decision was made on or after the commencement of this schedule, or
(b) the decision:
(i) was made before the commencement of this schedule and
(ii) as at that commencement an application for judicial review of the decision had not been lodged.
The provisions in schedule (1) are not particularly easy to interpret but I understand their meaning to be that the Migration Act as it currently stands applies to a judicial review application if the relevant tribunal decision was made on or after the commencement of the schedule. The relevant date is 2 October 2001. Secondly, the Migration Act as it currently stands applies to a tribunal decision made before that date if at that date no application for judicial review of the decision had been lodged.
It follows that the Minister cannot rely upon s.477(1A) of the Migration Act in this case. That is because the relevant tribunal decision was made before 2 October 2001 and because an application for judicial review of that decision had been lodged before that date.
I turn now to the notice of motion. The first ground relied upon depends upon the application of the doctrine of res judicata. The difficulty with attempting to apply that doctrine is that the relevant earlier proceedings were the proceedings instituted in the Federal Court on 17 August 2000. Those proceedings relied upon asserted breaches of now repealed ss. 476(1)(a)(e) and (g) of the Migration Act.
The present proceedings rely upon asserted jurisdictional error under the general law. Both proceedings are judicial review proceedings. To that extent, both proceedings are the same cause of action. However, the grounds of review relied upon and the legal basis for the two proceedings are different. In the absence of any authoritative guidance from the Federal Court as to whether the doctrine of res judicata applies in these circumstances, I am unwilling to apply it. Ms Gibson was not able to take me to any authoritative guidance from the Federal Court on the point.
Ms Gibson deals with the applicant's claims in the earlier proceedings and the RRT’s findings on them in paragraphs 5 to 8 of her written submissions on page 3 of those written submissions. I adopt those paragraphs for the purposes of this judgment:
The applicant, a citizen of Bangladesh, claimed to fear harm because of his Bihari descent. He claimed that various Bangladeshi political parties and their youth wings tortured and insulted Biharis. He claimed to be an executive member of an organisation that worked to promote the rights of Biharis. In 1994, he was threatened, robbed and his shop was burned down because of his involvement in this organisation.[8]
The RRT’s findings
The RRT did not accept that the applicant was a Bihari, characterising the evidence he gave in this regard as “internally inconsistent”, “problematic”, “highly implausible”, “fanciful” and “confused”.[9] As the RRT did not accept the applicant was a Bihari, it rejected the remainder of his claims.[10]
The RRT also found that, even if it accepted that the applicant was a Bihari, the independent country information indicated that Biharis were not persecuted in Bangladesh.[11]
The RRT rejected the applicant’s claims on the basis of strong adverse credibility findings that were open to it for the reasons it gave. Findings as to credibility are findings of fact for the RRT par excellence.[12] When the Honourable Justice Hill reviewed the RRT decision he commented:
In my view, there is just no ground for setting aside the RRT’s decision that it was not satisfied Mr Hossain was a Bihari[13].
[8] Affidavit, annexure “F” pp 51 - 59
[9] Affidavit, annexure “F” pp64 -66
[10] Affidavit, annexure “F” p 65
[11] Affidavit, annexure “F” p.67
[12] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407.
[13] Affidavit, annexure “B” p.16 at [19]
In relation to issue estoppel, Ms Gibson submits that to the extent that the present application asserts a breach of procedures required to be followed by the Migration Act, that issue has already been dealt with in the judgment of Hill J. I accept that the proceedings before Hill J depended in part upon an asserted breach of the former s.476(1)(a) of the Migration Act which was an assertion of a failure to follow required procedures.
The present application, while it contains a number of paragraphs, only contains two grounds of review. The second of those grounds is that the Migration Act was not followed properly. I take this to mean an assertion that some procedure required by the Migration Act was not followed. The applicant, in his oral submissions, addressed matters generally. He pointed out that he has no legal training and has had no assistance from a legal adviser. His documents in both proceedings have been prepared with the assistance of friends. The applicant was not able to assist me in interpreting the ground of his application relating to an asserted breach of procedures.
In my view, that ground is the same as the asserted breach of the former s.476(1)(a) of the Migration Act in the earlier proceedings before Hill J. That ground has been dealt with by the Federal Court. I accept Ms Gibson's submission that in the circumstances an issue estoppel arises in respect of that ground.
I also accept Ms Gibson's submission that the other ground raised in the present application which is an asserted bad faith ground could have been raised in the earlier proceedings before the Federal Court. In that regard I accept paragraph 12 of Ms Gibson's written submissions and adopt them for the purposes of this judgment:
Even if the Court considers that new matters are raised in this current application, the proceedings are barred by the operation of the doctrine of Anshun estoppel as the matters put forward in the current proceedings could have been put in one of the applicant’s sets of earlier proceedings.[14] Anshun estoppel prevents a party from raising in new proceedings matters that properly belonged to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence.[15] In addition, the applicant has not established “special circumstances” that would justify the Court exercising its discretion not to apply the Anshun principle.[16]
[14] Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602
[15] Wong v Minister for Immigration [2004] FCA 51 at [49]; Daniel v Minister for Immigration [2004] FCA 21 at [25]
[16] BC v Minister for Immigration [2002] FCAFC 221 at [22] – [30]
It was open to the applicant in the proceedings before Hill J to assert a breach of s.476(1)(f) of the Migration Act as it stood at the time. He did not do so, but could have done so. In my view, an asserted breach of the former s.476(1)(f) of the Migration Act is the same as an assertion of bad faith. In the circumstances, the principle of Anshun estoppel applies.
I note in any event that the allegation of bad faith is not particularised and on the basis of the material before me there is no substance whatever in the assertion. If I was not dealing with this aspect of the matter on the basis of Anshun estoppel I would either have struck out that part of the application or dismissed it as disclosing no reasonable cause of action.
There is nothing left in the application to continue to sustain it. I have myself considered whether there was any jurisdictional error in the decision of the RRT, noting that the applicant is self represented. In my view, there is no jurisdictional error.
It is apparent from the RRT decision that the applicant failed because he was not believed. His claims depended upon acceptance of him having Bahari ethnicity. Those claims were rejected by the presiding member as being a fabrication. Hill J found no error in the proceedings before him in relation to the RRT’s findings on credibility. My view is the same.
That brings me to the asserted abuse of process. The mere bringing of several court proceedings in respect of the same RRT decision does not itself point to an abuse of process. The proceedings ultimately disposed of by Emmett J depending upon the High Court's decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 which were dealt with by His Honour on 20 February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289) are in this connection irrelevant. That is because those proceedings were disposed of at an interlocutory stage and His Honour accepted an undertaking made on behalf of the Minister that the disposal of those proceedings would not be a bar to further proceedings. I have regard in particular to paragraph 28 of His Honour's reasons in that case.
However, the present application suffers from the same vices as the first application to the Federal Court that was dealt with by Hill J. In addition, the applicant has added the new vice of an unparticularised and unsupported assertion of bad faith. The two grounds of review currently relied upon by the applicant were either raised in the earlier proceedings before Hill J or could have been. There was no substance to those grounds then or now. In particular the asserted bad faith is a claim that should never have been made. The claim is not particularised and no shred of evidence has been advanced to support it.
This leads me to the view that the present proceedings are an abuse of process. I will therefore order that the application for judicial review filed on 18 March 2004 be dismissed summarily pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) and in accordance with the principles of issue estoppel and Anshun estoppel.
On the question of costs, Ms Gibson seeks an order for costs fixed in the sum of $2,800 on a party/party basis. In the circumstances where the application has been dismissed as an abuse of process it was open for the Minister to seek costs on an indemnity basis. I note the forbearance of the Minister in this regard. I have no doubt that costs of the order of $2,800 have been reasonably and properly incurred on behalf of the Minister. The applicant has told me that he is not permitted to work pursuant to the conditions attaching to his present visa. He says that he could not pay costs of that order. He may well be right, but impecuniosity is not a reason for the Court to refrain from making a costs order. It may determine whether the Minister is able to recover any costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,800.
In addition, the application having been dismissed in part as an abuse of process, it is appropriate that the applicant should be called upon to justify any further application to the court in respect of the same RRT decision. I will therefore order that any further application by this applicant to review the decision of the RRT made on 30 June 2000 and handed down on 18 July 2000 not be accepted for filing except by leave of the Court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 December 2004
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