S1580 of 2003 v Minister for Immigration - [2006] FMCA 507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1580 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 507

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.

PRACTICE & PROCEDURE – Abuse of process – earlier proceedings for review of same decision – res judicata – Anshun estoppel.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126 referred to.
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 referred to.
Kosi v Minister for Immigration [2003] FMCA 340
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451 followed.

Applicant:

APPLICANT S1580 of 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 739 of 2004

Delivered on:

30 March 2006

Delivered at:

Sydney

Hearing date:

29 March 2006

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Jayawardena

Counsel for the Respondent:

Mr Mantziaris

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as Second Respondent to the Application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed as an abuse of process.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.
The Applicant is restrained from commencing any proceedings for review of the decisions of the Refugee Review Tribunal made on 12 February 1998 and 10 February 1999 without leave of the Court.
The Registrar of the Federal Magistrates Court is directed to forward a copy of the reasons for decision to the Legal Services Commissioner.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 739 of 2004

APPLICANT S1580 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 10^th February 1999 and a copy of that decision was forwarded to the Applicants or at least the Principal Applicant the following day, 11^th February 1999, under cover of a letter from the Refugee Review Tribunal.
I will get straight to the point. These proceedings are an abuse of process. They are an abuse of process because the decision of the Refugee Review Tribunal has already been the subject of an application for judicial review.
The Applicants filed an application in the Federal Court on 12^th March 1999. The solicitors acting for them brought that application and, I would say at the outset, that I have no criticism to make about those solicitors who acted for the Applicant in respect of those proceedings. It is quite clear that they acted appropriately throughout the proceedings as far as I can ascertain. There is no need then even to mention them.
The application was the subject of decision by Drummond J on 17^th August 1999. A copy of his Honour's decision is before me and the application was successful at first instance.
The Minster appealed and on 30^th June 2000, a Full Court of the Federal Court consisting of Black CJ and Kiefel, Sundberg, Katz and Hely JJ issued a judgment allowing the appeal. The majority judgment was given by Black CJ and Sundberg, Katz and Hely JJ. To my mind, that decision by the Full Court of the Federal Court disposed of the application to review the decision of the Refugee Review Tribunal made on 10^th February 1999. There were no other relevant after 30^th June 2000 until the Applicant commenced these proceedings on 16^th March 2004. That application was brought by another solicitor, not the solicitors who had previously acted.
I note that the application was filed by Dr Jyoti Bharati of Bharati Solicitors of Campsie. There is nowhere that I can see in the application that makes any reference to the fact that the proceedings had previously been resolved by a decision of the Full Court of the Federal Court nearly four years earlier. Indeed, an Amendment Application was filed by Bharati Solicitors on 23^rd September 2004. No reference was made to any previous proceedings. It must have been obvious at the time these proceedings were commenced that there had been other proceedings in another court.
In order to comply with s.91X of the Migration Act, the Applicant was given a pseudonym. Each Court that exercises jurisdiction applies its own system of pseudonyms. For a fresh application in the Federal Magistrates Court, a five letter pseudonym is given beginning with the letters, SZ, if the application is filed in the Sydney Registry. Applications commenced in the Federal Court at the relevant time were given a pseudonym of four letters beginning with the letter, N. Applications in the original jurisdiction of the High Court of Australia were given a different pseudonym. The pseudonym there would involve the Applicant being described as Applicant S for Sydney and then given a number, and to that number would be added the year when the application was filed.
It was obvious then, that there had been previous proceedings, because of the fact that the Federal Court Registry allocated the High Court pseudonym, Applicant S1580 of 2003. That was as clear an indication as any legal practitioner would require, that there had been other proceedings of some sort. It is such a clear indication that it was like a neon sign, warning any practitioner, no matter how sparse his or her instructions were, that there had been other proceedings of some sort in this jurisdiction. Indeed, there were. But contrary to what I was told by the solicitor for the Applicant yesterday, they did not relate to this decision of the Refugee Review Tribunal at all.
The entire history of the litigation in this matter, with the exception of the original proceedings in the Federal Court leading to the appeal decision on 30^th June 2004, represents a sorry state of misapprehension, error and failure to provide this Court with appropriate information. The history is set out in the submissions for the First Respondent which were filed on 23^rd March 2006.
The current solicitor for the Applicant, Mr Jayawardena, indicated that he did not read those submissions when he received them, in order not to poison his mind prior to the hearing, in the belief that those submissions were with the Court. I have already indicated my view about the unwisdom of such a course, because paragraph 2 makes it quite clear that the Respondent was alleging that the current proceedings were an abuse of processes. Paragraphs 6-8 set out the unfortunate history of this matter.
There were in fact two Refugee Review Tribunal decisions. The first one was made on 12^th February 1998. That application was subject to judicial review and resulted in the matter being remitted to the Tribunal. The Tribunal heard the application again and made this decision on 10^th February 1999. The Tribunal again affirmed the decision of the Delegate as is made quite clear in the Respondent's submissions at paragraph 6; this second decision is the subject of the present judicial review application.
However, for reasons that I cannot explain, and no explanation has been provided to me, the Applicants then joined in a class action in the High Court. The current solicitor for the Applicant who was not involved in that class action informed the court yesterday, that that class action related to this decision of the Refugee Review Tribunal, it did not. What happened was that a draft order nisi was filed in the High Court of Australia on 29^th May 2003. That order nisi sought a review of the original Refugee Review Tribunal decision of 12^th February 1998.
The proceedings were therefore absolutely worthless and a complete waste of the time of the High Court of Australia because they were seeking review of a decision by the Refugee Review Tribunal that was a legal nullity. It had already been quashed by the earlier judicial review because there was the later decision the subject of this application. Even if the draft order nisi had related to the proper decision, it would still have constituted an abuse of process of the High Court of Australia because the judicial review proceedings had been complete in the Federal Court nearly three years before on 30^th June 2000. The draft order nisi procedure is a procedure in the Court's original jurisdiction, there was no jurisdiction, and the matter had been decided. If the Applicants wished to have the High Court give a decision, the appropriate course would have been to have sought special leave to appeal, they did not.
I find it astonishing that the solicitors for the Applicant on that occasion, Adrian Joel & Co, were in a position that they brought this application in respect of the decision which was a legal nullity; years after the later decision had been dealt with by the Federal Court. In my view, the solicitor who was on the record, Adrian Phillip Joel, who deposed to an affidavit on 14^th May 2003, has some explaining to do.
Those proceedings in the High Court eventually made their sorry way back to the Federal Court. The Federal Court, 20^th February 2004, dismissed that application. It appears to me that this was a non-compliance matter. It was only then, in March 2004, that the Applicant commenced this application seeking a review of the second decision which had already been the subject of judicial review. After a while, Bharati Solicitors filed a Notice of Ceasing to Act, they did this on 25^th January 2005.
The current solicitor, Mr Chandra Jayawardena, obtained instructions relatively late in the piece. It is clear that his instructions were inadequate. He filed a fresh Outline of Submissions which replaced the earlier Amended Application. In fact, not pressing any of the Applicant's grounds, but submitted three fresh grounds.
The first of those grounds related to jurisdictional error by a breach of s.424A of the Migration Act which was alleged, although I am quite satisfied that at the relevant time, s.424A of the Migration Act had not come into force. It will be recalled that the Tribunal made its decision on 10^th February 1999 and the appropriate schedule of the Migration Legislation Amendment Act 1988 which brought s.424A into effect, did not commence until 1^st June 1999.
There were two other grounds given, relating to jurisdictional error in respect of alleged breaches of ss.414, 420, 430, and failure to have evaluated whether the Applicant had a real chance of persecution as set out in s.91R(2) of the Migration Act. In my view, those grounds are of no more validity than the s.424A ground. In any event, the proceedings had already been subject to judicial review and the matter had been dealt with on appeal by the Full Court of the Federal Court.
The Respondent also submits that in any event the principle of Anshun estoppel applies, indeed it does, although my view is, this is clearly a case of res judicata, the matter has been decided, the matter has been decided by the Full Court of the Federal Court and was decided on 30^th June 2000.
It must have been obvious that these proceedings were way out of time. It is not always an explanation that there were proceedings in the High Court of Australia by means of joining into one of these notorious class actions. In this case, a simple investigation would have revealed not only was there an enormous period of delay between the time of the decision being handed down by the Tribunal and the application to the High Court, but that the application related to the wrong decision. It is absolutely no explanation for any delay, even if there had not been proceedings heard and completed in the Federal Court of Australia. The proceedings can best be described as a shambles.
I asked the solicitor for the Applicant yesterday if there had been earlier proceedings and he assured me that there had not. That is just incorrect. I am informed by the solicitor, Mr Jayawardena, that it was never his intention to mislead the Court, and he has acted honestly in all of his dealings. Even accepting that, in my view, the failure to make inquiries was, to my mind, inexcusable. These proceedings can best be described as a shambles.
Apart from the solicitors who originally acted for the Applicant and took the matter all the way to the appeal before the Full Court of the Federal Court in 2000, the solicitors who have acted for the Applicant since then, have not served the Court well.
The application is an abuse of process and a scandalous abuse of process. It will be dismissed with costs. I will be making an order restraining the applicant from commencing any proceedings for review of both the decisions of the Refugee Review Tribunal, the nullity decision of 12^th February 1998, and the decision of 10^th February 1999 which has been well a truly reviewed in another jurisdiction without the need of any assistance from this Court.
I am also of the view that the appalling way in which this matter has been handled right throughout the course of these proceedings, necessitates further action. It is not an excuse for a practitioner to say that they have not been given sufficient instructions when there are clues so obvious that there have been other proceedings, and anyone who practices in this jurisdiction must know the way that the system works, and practitioners cannot close their eyes to something that appears suspicious. None of this should have been a surprise.
I propose to direct the Registrar of the Federal Magistrates Court to forward a copy of my reasons for decision to the Legal Services Commissioner.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 11 April 2006