S1647 of 2003 v Minister for Immigration
[2006] FMCA 517
•23 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1647 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 517 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizens of India – claim based on imputed political opinion – res judicata – Anshun estoppel – abuse of process – application barred – application dismissed – leave of the court required for further applications. |
| Applicant S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 952 Applicant S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 417 Applicants S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 639 SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 Walton v Gardiner (1993) 177 CLR 378 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 |
| Applicants: | APPLICANTS S1647 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 42 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 23 March 2006 |
| Delivered at: | Canberra |
| Delivered on: | 23 March 2006 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Advocate for the First Respondent: | Mr A Chand |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 22 September 2005 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules as an abuse of the process of the Court
Alternatively, the proceedings are barred as res judicata or under the doctrine of Anshun estoppel.
The applicants not file any future proceedings in relation to the decision of the Refugee Review Tribunal of 11 June 1998 without leave of the Court.
The first applicant pay the costs of the first respondent fixed in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 42 of 2005
| APPLICANTS S1647 OF 2003 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second 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 made on 11 June 1998 affirming the decision of the delegate of the first respondent, the Minister, to refuse the applicants protection visas.
The applicants are mother and son. Any reference in these reasons to the principal applicant is to the applicant mother.
On 9 March 2006 the Minister filed an application seeking to have the applicants’ application of 22 September 2005 dismissed. The applicants filed an amended application on 30 January 2006.
The Minister seeks dismissal on a number of grounds: firstly the application is out of time, secondly because the application falls within the doctrines of Anshun estoppel or res judicata, and thirdly it is an abuse of process.
The applicants’ claims before the Tribunal were summarised by Barnes FM in Applicant S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 952 at [1]:
Only the applicant mother made specific claims under the Refugees Convention. The applicants, who are citizens of India, entered Australia on 22 March 1997 and lodged the application on 19 June 1997. The applicant mother claimed to fear persecution in India primarily on the basis of an imputed political opinion by reason of her husband’s connection with the Akali Dal Party.
The matter has already had a history in the courts. On 23 November 2004 Barnes FM dismissed the application, saying at [34]:
I have considered all of the material before me and all of the claims made by the applicant. No jurisdictional error has been established and the application must be dismissed.
Following that decision the applicants sought an extension of time from the Federal Court within which to file and serve a notice of appeal. This was considered by Stone J in Applicant S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 417. She dismissed the application on 15 April 2005 stating at [10]:
For reasons that I also gave in SZDZV at [10]-[11], the only basis on which the Federal Magistrate would be entitled to review the Tribunal’s decision is jurisdictional error. Her Honour gave careful consideration to this question and after a detailed review of the Tribunal’s decision held that no jurisdictional error had been established. Having reviewed both her Honour’s reasons and the Tribunal’s decision, I am of the opinion that an appeal from her Honour’s decision would have little or no chance of success. I therefore dismiss the application for an extension of time.
The applicants then sought special leave from the High Court. This was considered by McHugh and Heydon JJ on 30 August 2005: Applicants S1647 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 639. McHugh J on behalf of the Court said:
Having considered the reasons of the Courts below, and the reasons of the Tribunal, it is evident that an appeal would have no prospect of success as they contain no error of law that could give rise to a grant of special leave. Accordingly, the application must be dismissed.
Approximately three weeks later on 22 September 2005 the applicants filed in this Court for the second time. This application was amended on 30 January 2006.
Minister’s application for summary dismissal
The Courts have taken the view that any decision to dismiss proceedings summarily is an extreme one and the Court must exercise caution before exercising such a remedy.
Out of time
For reasons that I outlined to the parties at the hearing this application falls within the lacuna in the transitional provisions identified by Driver FM in SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479. There is therefore no time limitation. For that reason I do not need to consider this ground further.
Anshun estoppel and res judicata
The second and third grounds relate to Anshun estoppel and res judicata. Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 held that these doctrines are founded on the rules of public policy. A person ought not to be vexed twice for the same cause and it is in the interests of the State that there be an end to litigation. The Court said at [36]:
It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court …[o]nce 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 doctrine of res judicata applies where the issue has been previously litigated. There is then an absolute bar on the Court reconsidering a matter that has been brought to a conclusion by previous litigation.
The Court in Wong went on to say at [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 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.
As set out in Anshun there may be special circumstances which permit a party to agitate in subsequent proceedings an issue that should have properly been raised in earlier litigation.
The question is whether these doctrines apply to the current proceedings.
The applicants’ submissions filed on 17 March 2006 are threefold. Firstly, the applicants contend that the Tribunal failed to properly consider whether the harm alledged by the principal applicant was systematic. Secondly, the Tribunal failed to consider in detail what harm might happen to her within her community before deciding that it may not be systematic conduct. Thirdly, the Tribunal did not consider a particular social group now identified by the applicants.
The Minister’s counsel referred me to paragraph [34] of the decision of Barnes FM where some of these matters are addressed. Here Barnes FM finds that the Tribunal did give consideration to claims based on membership of a particular social group and to the issue of systematic conduct. The findings made by the Tribunal seem to me to be ones which it were open to it in both these respects.
The Minister asserts that in effect the applicants are seeking to re-litigate matters on the merits. In my view there is some justice in what the Minister says.
The question therefore is whether or not there are special circumstances which would justify the Court permitting the applicants to raise issues in these new proceedings that they say have not previously been raised.
The special circumstances that the principal applicant’s husband put on behalf of the applicants are that previously the applicants were not legally represented because the principal applicant was suffering financial hardship and that if she was sent back it would be a matter of life and death. I note that she is also not legally represented in the current proceedings.
A further matter which was put to me was that the principal applicant’s husband also has litigation before the courts. He was hoping that his wife’s case may be joined with his. I pointed out however that these proceedings are discrete and quite separate from his matter which is in the Federal Court.
Having considered the grounds now raised by the applicant, the history of the litigation and the claims of special circumstances, I am satisified that to the extent that the doctrine of res judicata does not apply, the doctrine of Anshun estoppel should. I am not satisfied that given the history of the litigation the special circumstances now raised are sufficient to justify reopening the litigation.
Abuse of process
The Minister also seeks to have this matter dismissed as an abuse of process. The principles relating to abuse of legal process are set out in the decision of the High Court in Walton v Gardiner (1993) 177 CLR 378 at 392-393:
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 proprierty of the purpose of the person responsible for their insitution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (36). … 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 (38).
Having regard to this authority I am of the view that these proceedings are an abuse of process.
The Refugee Review Tribunal decsision was made in 1998 and communicated to the applicant at that time. The applicants, albeit unrepresented, have taken the proceedings all the way to the High Court.
In both the High Court and in the Federal Court on appeal from Barnes FM their Honours said that they had considered and reviewed the Tribunal’s decision.
In the High Court McHugh J said:
…it is evident that an appeal would have no prospect of success as they [the reasons of the Courts below and of the Tribunal] contain no error of law that could give rise to a grant of special leave.
Within a month of that decision of the High Court proceedings were instituted in this Court for a second time. It is my view that these proceedings fall within the strictures in Walton v Gardiner.
I therefore dismiss these proceedings as subject to the doctrines of res judicata and Anshun estoppel, and as an abuse of process.
I also make the order sought by the Minister that no further application be accepted in this Court in relation to the decision of the Refugee Review Tribunal of 11 June 1998 without leave of the Court (see Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581).
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 29 May 2006
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