S153 of 2003 v Minister for Immigration
[2006] FMCA 155
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S153 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 155 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India. PRACTICE & PROCEDURE – res judicata – issue estoppel – Anshun estoppel – abuse of process – no reasonable prospect of success – summary dismissal – competency – objection to competency. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), ss.474, 476, 477, 486D Federal Magistrates Court Rules 2001 r. 13.03A(a) |
| Applicant S153/2003 v Minister for Immigration & Ors [2005] FMCA 1660 Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FLR 225; 118 ALR 248 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | APPLICANT S153 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3613 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 January 2006 |
| Date of Last Submission: | 16 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr White |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3613 of 2005
| APPLICANT S153 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for an order that the respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Refugee Review Tribunal that was made on 11th December 2001 and handed down on 9th January 2002. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The respondent Minister asks the Court to dismiss the application on the ground that it is an abuse of process. The Minister also says that the applicant is estopped from bringing the current proceedings on the basis of res judicata and issue estoppel and that the doctrine of Anshun estoppel applies and there are no special circumstances to justify its non-application, and under finally, under part 13, r. 13.10(a), the applicant has no reasonable prospect of successfully prosecuting the proceeding.
A history of the matter shows that this is in fact the third time that the applicant has applied to a Court in its original jurisdiction to review the one decision of the Refugee Review Tribunal. The applicant originally commenced the proceedings on 5th February 2002 in the Federal Court. On 7th May of that year the late Beaumont J transferred the proceedings to the Federal Magistrates Court. On 5th June 2002 the applicant filed a notice of discontinuance in the Federal Magistrates Court and on
11th July Barnes FM made an order that the applicant should pay the respondent's costs in the amount of $2,000.00.
On 28 April 2003 the applicant then lodged a draft order nisi and a supporting affidavit with the High Court of Australia. On 20th August that year Heydon J in the High Court remitted the proceedings to the Federal Court and on 5th August 2005 Emmett J in the Federal Court transferred the proceedings to this Court. The matter came before my colleague Driver FM on 14th November 2005. Annexed to an affidavit of Nicola Johnson, solicitor is a copy of the decision of Driver FM who heard the proceedings that day. The media-neutral citation is [2005] FMCA 1 at [660]. I note that on that date a Mr B Young of counsel appeared amicus curiae for the applicant.
The Court considered submissions made by Mr Young, noting that he had only had a very limited opportunity to peruse the material and had not had an opportunity to take proper instructions from the applicant. His Honour at paragraph seven said that, in his view, it was apparent from a reading of the Tribunal decision and reasons that the applicant's claims to fear harm at the hands of the CPI were considered by the Tribunal. His Honour noted:
While some letters produced by the applicant were given no weight by the RRT, it does not appear to me that that rejection was in any way determinative of the outcome of the application. The RRT took the view that the applicant probably had no fear of persecution, but if he did it was not well-founded, and even if it was well-founded, he could relocate within India.
His Honour found there was no arguable basis on which the decision of the RRT could be challenged. His Honour also at paragraph eight noted the extensive delay between the decision of the RRT and the proceeding instituted in the High Court and took the view, rightly in my view, with respect, that exceptional circumstances would need to be shown to grant an extension of time of over 12 months. His Honour saw no exceptional circumstances and he referred to the well-known of decision of Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. His Honour went on to say at [9]:
Accordingly, and having regard to the delay in bringing the proceedings in the High Court, I will dismiss the application for orders nisi.
His Honour also made an order for costs.
The applicant did not appeal against this decision. Instead the applicant lodged a fresh application on the 8th December 2005.
The applicant gave three grounds, one of which referred to the letters to the Tribunal about which Driver FM had already commented in the proceedings before him. Another ground was:
The Tribunal failed to consider the totality of the case and made an error in not providing an opportunity to make comments on materials which the Tribunal relied on in its decision.
In my view, there is no basis for that ground. In any event, the question of res judicata applies.
The applicant has made several attempts to overturn the decision of the Refugee Review Tribunal. He discontinued the first; he was unsuccessful in the second and did not appeal. What he has done is commenced again to re-litigate a decision that has already been litigated.
The repeated filing of applications against a respondent is of itself an abuse of the process of the Court. In my view, this application is an abuse of process. The doctrines of res judicata and issue estoppel apply and, in my view, the doctrine of Anshun estoppel also applies.
I see no special circumstances to justify its non-application.
The applicant has said that he wants to bring the case with a solicitor acting for him. As I said to him during proceedings, he has had four years to obtain legal advice.
These proceedings are an abuse of process and I propose to dismiss them now pursuant to part 13, r. 13.10(c). The application is dismissed.
There is an application for costs. I found that the proceedings are an abuse of process and to my mind that is a reason, as Mr White submits, for costs to be ordered on an indemnity basis. Where proceedings are an abuse of process a Court should consider indemnity costs. I rely on the decision of Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FLR 225; 118 ALR 248 with a very useful list of reasons set out there. The application did require a degree of preparation and I note the
well-prepared and detailed affidavit of Nicola Johnson. To my mind, this affidavit was a very useful document in determining the proceedings and it is not difficult to see the amount of work that has gone into the preparation of the case.
The applicant is to pay the respondent's costs fixed in the sum of $1,100.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 February 2006
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