S1307 of 2003 v Minister for Immigration
[2005] FMCA 1799
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1307 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1799 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa MIGRATION – Practice and Procedure – application for summary dismissal – whether application an abuse of process – whether principle of res judicata applies – whether any discretion to permit application to continue. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Part 13, Rule 13.10(c)
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
| Applicant: | APPLICANT S1307 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2507 of 2005 |
| Delivered on: | 17 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms J Bautista |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s Notice of Motion filed on 16 September 2005 is upheld.
The application for judicial review filed on 7 September 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Chris Keher File No: N97/16415) made on 29 April 1998 or the decision of the Delegate of the Minister for Immigration (of Keith Dixon) handed down on
29 April 1997 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,500 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2507 of 2005
| APPLICANT S1307 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 16 September 2005 the respondent’s solicitors moved the Court for orders that the application filed on
7 September 2005 be dismissed on the grounds that:
a)The doctrine of res judicata applies and is a complete bar to the application.
b)The doctrine of issue estoppel applies and is a complete bar to the application.
c)Anshun estoppel applies and there are no special circumstances to justify its non application.
d)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), the proceedings are an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 September 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 April 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 April 1997 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this Notice of Motion, the respondent tendered and applied for the affidavit of Nicola Johnson sworn on 15 September 2005 (“the affidavit of Ms Johnson”) to be admitted into evidence.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “Applicant S1307 of 2003”.
Litigation history
The relevant litigation history of the applicant was set out in the affidavit of Ms Johnson and I adopt paragraphs 4-20 of that affidavit for the purpose of this judgment:
[4]On 29 April 1998, the RRT constituted by Chris Keher handed down a decision to affirm the decision of a delegate of the respondent to refuse the applicant a protection visa.
[5]On 27 May 1998, the applicant lodged an application for judicial review in the Federal Court of Australia, New South Wales District Registry to review the RRT decision handed down on
29 April 1998. Those proceedings were allocated Federal Court proceedings number N501 of 1998.[6]On 17 November 1998, the Honourable Justice O’Connor ordered that the application be dismissed with costs.
[7]On 10 September 1998, the applicant through his solicitor Adrian Joel lodged an amended statement of claim and additional schedule of represented parties in the High Court of Australia, Sydney Registry in proceedings S97 of 1998. Those proceedings involved a class action of Herijanto against the RRT. The applicant’s name is listed on page 6 of the additional schedule of represented parties.
[8]On 25 September 2001, the Honourable Justice Gaudron ordered that the represented parties in the Herijanto proceedings be inserted as represented parties in the proceedings of Muin v RRT, proceedings S36 of 1999.
[9]On 25 November 2002, the Honourable Justice Gaudron made several orders in relation to High Court proceedings S89 of 1999. Order 2 of her Honour’s orders stated that leave be granted to any other person named in the schedule of the statement of claim to file an application seeking an order nisi in relation to the decision of the RRT in relation to that individual on or before 1 June 2003. Order 3 of her Honour’s orders stated that any application filed would be remitted instanter to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s.44 of the Judiciary Act 1903 (Cth).
[10]On 29 May 2003, the applicant filed a draft order nisi and affidavit of Adrian Joel annexing copies of the delegate’s decision and the RRT decision of 1 June 2000 in the High Court of Australia, Sydney Office of the Registry. These proceedings were given the proceedings number S1307 of 2003.
[11]The proceedings remitted to the Federal Court of Australia, New South Wales District Registry were given the proceedings number N1337 of 2003.
[12]On 20 February 2004, the Honourable Justice Emmett made orders refusing the application for an order nisi.
[13]On 18 March 2004, the applicant filed an application for judicial review in the Federal Magistrates Court, at Sydney, to review the Tribunal’s decision handed down on 29 April 1998. The proceedings were allocated Federal Magistrates Court proceedings number SZ798 of 2004.
[14]On 29 July 2004, the respondent filed and served a Notice of Motion for summary dismissal in proceedings SZ798 of 2004. The respondent’s Notice of Motion was listed for hearing on
29 November 2004.[15]On 29 November 2004, the Honourable Federal Magistrate Driver ordered that leave be granted for the applicant’s notice of discontinuance to be filed in Court and that the applicant pay the respondent’s costs in the sum of $3,000.00.
[16]On 30 November 2004, the applicant filed an application for leave to appeal and extension of time to file and serve a notice of appeal in the Federal Court of Australia, New South Wales District Registry, in respect of the orders and judgment of the Honourable Justice Emmett dated 20 February 2004. The proceedings were allocated Federal Court proceedings number NSD1773 of 2004.
[17]On 7 February 2005, the Honourable Justice Hely ordered that the application for leave to appeal and extension of time be dismissed with costs.
[18]On 7 March 2005, the applicant filed an application for special leave to appeal from the orders and judgment of the Honourable Justice Hely in the High Court of Australia, Sydney Office of the Registry. The proceedings were allocated High Court proceedings number S80 of 2005.
[19]On 10 August 2005, the Honourable Justices Hayne and Callinan ordered that the application for special leave to appeal be dismissed.
[20]On 7 September 2005, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia. Those proceedings were allocated Federal Magistrates Court proceedings number SYG2507 of 2005.
Reasons
The Tribunal’s decision was handed down on 29 April 1998 which was prior to amendments in the Migration Act 1958 (Cth) which included time limits contained in s.477(1A). That provision did not come into effect until 2 October 2001; consequently the issue of a Notice of Objection to Competency in this matter is not relevant so the grounds of dismissal must be considered under the doctrine of res judicata, Anshun estoppel and abuse of process. In these circumstances, the respondent moved on the Notice of Motion filed on 16 September 2005 and contended that res judicata applied and is a complete bar to allowing this application to continue. This is because the present application seeks to review the same Tribunal decision that was the subject of the applicant’s previous judicial review proceedings. The substratum of facts giving rise to the right to review are the same as are the substance of the proceedings. The right to relief in each case is informed by the same substantive legal principles and the proceedings do not differ in any material respect.
Although the initial Federal Court proceedings filed on 27 May 1998 were commenced under the old Part 8 of the Act, the current proceedings are brought pursuant to s.39B of the Judiciary Act 1903 (Cth) and the respondent contended, and I accept that submission, that the change in provisions of the Act do not prevent the cause of action of the two proceedings to be substantially the same. The respondent contended that res judicata is a complete bar to the application and the Court has no discretion to allow the matter to continue: SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs per Madgwick J at [21]-[22]:
“During the appellant’s time in Australia, there have been some statutory changes as to the bases upon which he might seek or not seek judicial review. Nevertheless, his claim always has been that, in a variety of ways expressed from time to time, the Tribunal’s decision should be quashed and his application for a protection visa remitted to the Tribunal for redetermination de novo. Whether such claims were originally framed as justified because of jurisdictional error or not, and whether he needed to frame them as such or not to obtain relief from this Court or the Magistrates Court, the applicant relied upon the facts of (a) the Tribunal’s decision; (b) that the Tribunal gave its decision for the reasons it did, and (c) the passage or otherwise of certain documents from the respondent’s department to the Tribunal. The applicant claimed that the legal effect of those facts was that the Tribunal’s decision had not been lawfully made and that the Tribunal should be made to redo its work. In my opinion, the rejection of that claim, as variously put in the Federal Court and in the High Court, means that such claim has merged into final and conclusive judgments and is not open for re-litigation. The way a claim is argued, or even expressed in terms of the actual relief claimed, does not affect the substance of the claim: that arises out of the asserted facts and their asserted legal effect.
I therefore agree, for the reasons given above, that this is a case of res judicata and that, as such, the proceedings cannot be maintained.”
In respect of issue and Anshun estoppel, the question arises: “Is there anything that the applicant is raising now that has not already been previously determined?” which means that issue estoppel applies in relation to those matters and “Is there anything new being raised that could have been raised previously and was not?”. These issues should not be allowed to be raised now. Ms Bautista drew to my attention that except for Ground 2 in the new pleadings, which raises natural justice, all the other grounds in the current application have been raised in previous proceedings even though the application was commenced under the old Part 8 of the Act. It was submitted that even in relation to the allegation of breach of natural justice, it is possible that the complaints undermining that ground could have been made at the applicant’s previous proceedings. The second ground in the current proceedings is pleaded in the following manner:
“The Tribunal denied the natural justice in determine my review application that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.” (Errors included)
In the absence of particulars as to the way those grounds are sought to be advanced in these proceedings, it is not possible to conclude that they could not have been advanced in the previous proceedings. It was submitted that the applicant could have raised a denial of natural justice allegation and pursued this claim in his previous proceedings in the Federal Magistrates Court lodged on 18 March 2004. However, the applicant did not proceed with that application but instead lodged a notice of discontinuance. The applicant has not established special circumstances that would justify the Court exercising its discretion not to apply Anshun principle.
The respondent contended that the proceedings are an abuse of process in that the applicant has already obtained a substantive decision in the proceedings in the Federal Court before the Honourable Justice O’Connor. However, before his Honour delivered that decision the applicant joined the Herijanto class action in the High Court on
10 September 1998.
The applicant’s application for an order nisi that was subsequently filed in the High Court was remitted to the Honourable Justice Emmett in the Federal Court. His Honour found that the application for an order nisi did not demonstrate any arguable case and was dismissed on that basis.
The applicant then proceeded to file a further application in the Federal Magistrates Court on 18 March 2004. Four days prior to the scheduled hearing of a Notice of Motion for summary dismissal the applicant filed a notice of discontinuance. The respondent submitted, and
I agree, that if the applicant had genuinely sought relief from the Federal Magistrates Court, it was open for him to pursue that application despite the respondent’s contention that he was estopped from doing so. The applicant discontinued that application and waited a further 35 days and then sought review of the decision of Emmett J that had been made nine months earlier. The respondent submitted that the current application suffers from the same problems as the applicant’s previous application in that it is completely devoid of particulars disclosing any substantial basis for prosecution of the application. I accept the submission that this pattern of behaviour is a sufficient basis for a finding of an abuse of process.
The respondent submitted that the litigation history clearly raised the inference that the present application has been filed for a collateral purpose of extending the applicant’s stay in Australia and not for a legitimate purpose of seeking judicial review. The applicant has lodged the current proceedings in the sixth attempt to seek review of the same Tribunal decision. The respondent submitted that the repeated bringing of similar applications for judicial review in relation to the same Tribunal decision is unjustifiably vexatious and brings the administration of justice into disrepute as there is an underlying public interest that there be finality to litigation. I refer to the decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.”
Conclusion
The judicial review application filed on 7 September 2005 is dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of process and the doctrine of res judicata, issue estoppel and Anshun estoppel apply.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 November 2005
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