SYWB v Refugee Review Tribunal - [2005] FMCA 1003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYWB v REFUGEE REVIEW TRIBUNAL & ANOR

[2005] FMCA 1003

MIGRATION – Application for protection visa; judicial review application is already determined adversely to applicant – doctrine of res judicata application.

Federal Magistrates Court Rules 2.06,13.07
Judiciary Act 1903, s.39B

Somanader v MIMIA (2000) 178 ALR 677

Applicant:

SYWB

Respondents:

REFUGEE REVIEW TRIBUNAL & ANOTHER

File Number:

ADG 101 of 2005

Judgment of:

Lindsay FM

Hearing date:

28 June 2005

Date of Last Submission:

28 June 2005

Delivered at:

Adelaide

Delivered on:

28 June 2005

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Burn

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 11 May 2005 will be dismissed.
That the applicant be restrained and an injunction granted restraining the applicant from instituting any further applications in this Court relating to or arising out of the determination of the Refugee Review Tribunal of 13 May 2003 without the leave of this court having been first obtained.
That the applicant do pay the second respondent's costs of and incidental to these proceedings, such costs to be agreed within 28 days or as fixed by the Registrar of this Court on taxation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 101 of 2005

SYWB

Applicant

And

REFUGEE REVIEW TRIBUNAL & ANOTHER

Respondents

REASONS FOR JUDGMENT

Before me this morning is an application under section 39B of the Judiciary Act filed by the applicant on 11 May 2005 and also a cross‑application or a responsive application by the minister seeking to have the application summarily determined pursuant to the provisions of the rules of this court, and in particular rule 13.07, which provides that:
The court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the court that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or the proceeding or claim for relief is frivolous or vexatious; or the proceeding or claim for relief is an abuse of the process of the court.
And it is, in particular, subrule (a) and subrule (c) which, as I understand the minister's submission, are particularly relevant to the determination of this application.
I have read the comprehensive outline of submissions filed by the Minister which provides a convenient summary of the history of the proceedings under the Migration Act relating to this applicant. I have read, of course, the applicant's 39B application filed on 11 May and his affidavit filed in support of the application. It is an affidavit filed on 15 June 2005. I have already determined this morning the application for a further adjournment of the proceedings promoted by Applicant SYWB. It was not put directly to me that it was such an application, but rather restated what was put to me on the last occasion. I have determined that application adversely to him and I am now dealing with the substantive applications of each of the parties.
I have given Applicant SYWB the opportunity to put to me what he wants to put in relation to both his application and the application for summary determination and, other than repeating his contention that he is entitled to the relief on the same general grounds as he advanced apparently before Smith FM and in his application filed in this proceeding, filed before me, he has chosen not to put anything further to me.
It seems to me that the application raises squarely issues relating to res judicata. It also raises matters relating to what has been described as Anshun estoppel and issue estoppel, but it seems to me that the nature of these proceedings is such that I can go further than mere reliance upon those doctrines. It seems to me that this is an appropriate case for the application of the doctrine of res judicata, and I refer to the written submissions of the minister in relation to the nature of that doctrine and in particular to paragraphs 19, 20 and 21 of the written submissions, and the passages there cited from the decision of Merkel J in Somanader v MIMIA (2000) 178 ALR 677:
19.One of the authorities most often cited in support of this proposition is Somanader v MIMIA (2000) 178 ALR 677. As Merkel J observed in that matter, substance is more important than form in deciding whether a cause of action has been disposed of in previous proceedings:
“It is clear from the above authorities that the identity of the causes in action in question is to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded”.
20.In Somanader, Merkel J found that there was “commonality of the causes of action” stating (in a passage that has been applied many times in the Federal Court) that:
“The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the sets of proceedings differ in any material respect. Thus, the dismissal order finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in interpretation in application of the invention in the presence case.”
21. He went on to conclude:
“The dismissal orders must therefore be seen as finally disposing of the subject of the litigation, namely each of the seven grounds of review outlined in the application. That conclusion must follow from the fact that, as each ground give rise to a right of judicial review, the dismissal necessarily decided that none of them gives rise to a right of judicial review of the decision or to any of the remedies available under section 481(1) of the Act. As the grounds open to be relied upon before the Court and the relief available. On the remitter in the section 75(v) proceedings were no wider or greater than the grounds for relief available in the proceeding the subject of the dismissal orders, the applicants rights in respect of those grounds merged in the judgment arising from the dismissal orders.”
It seems to me that the order made by Smith FM in September of last year was an order of the type that enables the doctrine to be raised in the proceedings before me. It was a final order that resolved in a final way the controversy between the applicant and the minister. The parties to the proceedings are the same and the matter was dismissed by Smith FM for the reasons that are set out in his judgment, which I have read.
The application proceeds on the same set of facts. That is, it is based on a determination made by the Refugee Review Tribunal on 13 May 2003. That was a hearing of the tribunal which the applicant failed to attend and the reasons advanced by him for his non‑attendance were dealt with by Smith FM.
True it is that in the proceedings before me there is frankly raised the issue of actual bias on the part of the tribunal, but it is not taken any further than the mere assertion of that bias in paragraph 3(a) of the particulars of the application. That is despite the applicant having the opportunity to tell me more about that in the affidavit and to tell me more about that in the submissions that he has had the opportunity of making today but which has not been taken up. It was made very plain to the applicant on the last occasion that the substantive hearing would occur today.
It seems to me that the bias matter, raised as it is in a bare way, does not serve to distinguish the nature of the proceedings before Smith FM and the nature of proceedings before me today in any relevant way, and it seems to me that I am bound to apply the doctrine of res judicata and, that being the case and pursuant to the rules of this court, the application ought to be dismissed.
I am concerned about the potential for abuse of process in this matter. As I say, the application is essentially the same application. It is filed in circumstances where the applicant was anxious to promote an adjournment of the application before me on the last occasion. He is anxious to promote it again today, in circumstances where I am told his presence in the country is upon the basis of a visa pending resolution of his judicial proceedings, and when I add those circumstances to the fact that, having been given an opportunity to put relevant matters before me, it is not taken, it raises very clearly in my mind the high degree of probability that this application is an abuse of the process of the court, and the high degree of probability of the applicant bringing a further application in the same circumstances and with the same lack of substance or merit.
For those reasons it seems to me to be appropriate that an order be made pursuant to Rule 2.06 of the Rules of this Court, requiring that the applicant have the leave of the court before any further proceedings are instituted.
It is appropriate that, the application having been bound to fail as it was, for the reasons I have outlined, there be an order for costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: S.M. Smart

Date: 19-7-05