SZACN v Minister for Immigration
[2005] FMCA 1047
•27 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZACN v MINISTER FOR IMMIGRATION | [2005] FMCA 1047 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – prior proceedings in relation to Tribunal decision – summary dismissal – whether Anshun estoppel or abuse of process. |
| Federal Magistrates Court Rules 2001, Rule 13.03(c) Migration Act 1958, s.476 |
| Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 Somander v Minister for Immigration and Multicultural Affairs (2001) 78 ALR 677 A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Muin v The Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 BC v Minister for Immigration & Multicultural Affairs [2001] FCA 393 A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Walton v Gardiner (1993) 177 CLR 378 SZAFO v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FMCA 885 SZACN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 185 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 |
| Applicant: | SZACN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1597 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 20 June 2005, be dismissed on the basis that:
(a) the applicant is estopped from bringing the proceedings; and
(b)the proceedings amount to an abuse of the court's process and should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrate Court Rules 2001.
The applicant pay the respondent's costs fixed in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1597 of 2005
| SZACN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is a matter that comes before the Court by way of consideration of a notice of motion filed by the respondent on 1 July 2005 seeking that an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) be dismissed on the basis that the applicant is estopped from bringing the proceedings or the proceedings amount to an abuse of process and should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
The background to this application is that the applicant, who is a citizen of Bangladesh, arrived in Australia in 2000 and sought a protection visa. The application was refused and he sought review by the Tribunal. On 21 November 2002 the Tribunal handed down a decision affirming the decision of the delegate of the respondent not to grant the applicant a protection visa.
The applicant sought review of that decision by proceedings commenced in the Federal Magistrates Court on 16 December 2002. On 12 May 2003 Federal Magistrate Raphael made orders dismissing the application. He considered the grounds raised by the applicant in his application and gave reasons for his decision reported at [2003] FMCA 185.
On 30 May 2003 the applicant filed a notice of appeal in the Federal Court and on 8 August 2003 Moore J of the Federal Court made orders dismissing the appeal. His reasons for judgment are reported at [2003] FCA 836 and involve a consideration of all the bases for appeal raised by the applicant (which largely took issue with aspects of the decision by the Tribunal).
Thereafter, on 2 September 2003, the applicant filed an application for special leave to appeal in the High Court. That application was deemed abandoned on 15 March 2004. On 29 March 2004 the applicant filed a further application for special leave to appeal and on 17 September 2004 filed a draft notice of appeal.
On 27 May 2005, Heydon and Hayne JJ made orders refusing the application for special leave to appeal. A transcript of the application for special leave to appeal proceedings is annexed to the affidavit sworn and filed on 1 July 2005 by Andrew John Crockett, the solicitor who had carriage of the matter for the respondent's solicitors. It is apparent from that transcript that at the time of the proceedings before the High Court the applicant had the assistance of legal representation.
On 20 June 2005 the applicant filed an application in this Court seeking review of the same decision of the Tribunal. The respondent filed a notice of objection to competency and then the notice of motion to which I have referred. The respondent seeks, on a number of alternative bases, that the applicant's application for judicial review be summarily dismissed and that the Registry not accept any new application from the applicant seeking to challenge the decision of the Refugee Review Tribunal without leave of the court.
Although the applicant filed in Court a document described as written argument for notice of competency, in fact that document (which is to some extent in a familiar standard form and refers to judicial review under the now repealed section 476 of the Migration Act 1958 (C’th)), takes issue with aspects of the Tribunal decision and purports to raise some grounds for review but addresses only in passing the notice of motion seeking summary dismissal that is presently before the Court. It states that the applicant is not satisfied with the Minister's opinion that:
I have no new ground in this judicial review application. It's not true. I have all new grounds I submitted in my application.
In the hearing today, the applicant merely said that he had problems in his country and so had to fight this case.
Turning to the grounds for summary dismissal, res judicata applies when an applicant seeks to re-litigate the same claims for relief that were raised in earlier proceedings. The doctrine applies in relation to judicial review of administrative proceedings. See in particular Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51.
As Merkel J stated in Somander v Minister for Immigration and Multicultural Affairs (2001) 78 ALR 677 at 53:
The identity of the claims for relief or causes of action in question is to be determined by matters of substance rather than the form of the particular proceeding, or the way in which it is pleaded.
In Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306, Wilcox J suggested at [18] that the central question was whether the applicant's second application sought to re-litigate the same claim for relief as in the earlier proceeding.
He stated that “It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced.”
On this broad view of the scope of res judicata, the grounds that are raised in the application filed on 20 June 2005, can be seen as an attempt to re-litigate the same claim for relief that was raised by the applicant in the original application filed on 16 December 2002, and subsequently pursued all the way to the High Court. However, it is not necessary for me to consider, in detail, the precise scope of each of the grounds raised or, indeed, the grounds that the applicant now seeks to raise in the written submission filed in court or the precise limits of the doctrine of res judicata because I am satisfied that, in any event, it is clear that the doctrine of Anshun estoppel applies and should be applied to preclude the applicant from raising any of the grounds pleaded in his application or (insofar as they differ) the grounds that he now appears to seek to rely on in the written ‘argument’.
The doctrine of Anshun estoppel prevents a party from raising in new litigation matters which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to rely upon such matters (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
In this instance the issues that the applicant raises relate to the Tribunal decision and conduct of the review and are clearly relevant to the subject matter of the earlier action. It was open to the applicant to have raised in the prior proceedings against the respondent any or all of the generally expressed grounds that he now raises in his application for review and those he pursues in more detail in his written argument for notice of competency.
The application filed on 20 June 2005 relies on general grounds that the Tribunal exceeded jurisdiction, constructively failed to exercise jurisdiction, asked the wrong question, did not take evidence into consideration, denied natural justice, or was biased. It takes issue with the Tribunal's failure to investigate the applicant’s claims as an alleged lack of procedural fairness. It also claims that the Tribunal did not give the applicant the opportunity to comment on material or verify the authenticity of his evidence, and that it ruled out his claim as fabricated without proper investigation. It takes issue with the weight that the Tribunal gave to country information, and claims that the Tribunal was preoccupied and did not have a ‘fresh look’.
In the written argument for notice of competency, the applicant claims that there was a breach of the rules of natural justice and a breach of provisions of the Migration Act 1958. He takes issue with the weight given to independent information, the neutrality of the Tribunal member and the preference given to country information before the Tribunal instead of evidence provided by the applicant. He also claims that the principles in the decision in Muin v The Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 are applicable, as well as taking issue with the merits of the Tribunal decision. He questions the rationality of the Tribunal decision and claims that the Tribunal ignored relevant evidence and made a finding in the face of contradicting independent evidence, that being a breach of procedural fairness. The argument concludes by contending that the applicant had submitted his transcript to identify the issue of jurisdictional error, a claim which he clarified in oral submissions to be that he had provided a transcript in the High Court proceedings. His grounds for relief are said to be denial of natural justice and that the Tribunal decision was made in bad faith.
In the circumstances of this case, I consider that the principles of Anshun estoppel apply. I have reached this conclusion on the basis of considering all the circumstances and material before me. I do not consider that special circumstances are present which would enliven the discretion to refrain from the application of the Anshun estoppel doctrine. The material filed by the applicant does not raise circumstances which would warrant the exercise of that discretion. While mindful of what was said by the Full Court of the Federal Court in BC v Minister for Immigration & Multicultural Affairs [2001] FCA 393, I do not consider that there are special circumstances in this case.
In particular, procedural fairness as well as the other bases on which it is contended that the Tribunal fell into jurisdictional error could have been raised as grounds for review at the time of his prior proceedings (insofar as they were not so raised). The grounds that seek to rely on principles considered by the High Court in Muin and Lie, were arguments that were open to be made by the applicant at the time of his original application and were raised in the special leave application. While he commenced his proceedings before the decision in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 this is not, (given the opportunity the applicant had either to amend his application, raise grounds at the hearing before Raphael FM which was held after the decision of Plaintiff S157/2002 (see SZACN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 185 at [9] and in the Federal Court and High Court) such as to constitute special circumstances.
I note that the applicant pursued his proceedings all the way to the High Court. He had the assistance of legal representation in his application for special leave to appeal to the High Court. It has not been established that there are any reasons as to why the issues, which the applicant now seeks to raise, were not canvassed in earlier proceedings (insofar as that is the case) such as to constitute special circumstances. The applicant is estopped from pleading the grounds which he now seeks to raise.
In the alternative, if I am wrong in what I have said in relation to res judicata or, more particularly, Anshun estoppel, I am in any event satisfied, as Wilcox J was in ApplicantA321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306, that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term as discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 392 – 393.
The applicant seeks to re-litigate a matter which was dealt with by the Federal Magistrates Court, by the Federal Court on appeal, and in relation to which there were two special leave applications to the High Court, the latter of which was, in fact, considered by the High Court.
The claim for relief he makes, as I have indicated above, is essentially the same. He seeks to invoke the same jurisdiction. The substance of the claims that he now makes has been dealt with by the prior proceedings. His matter has been finally resolved by those proceedings. Moreover, on the material before me, the grounds as expressed in the application, and indeed, in the argument for notice of competency, do not establish an arguable basis for relief.
The applicant has not attempted to point to any error by the Courts in previous proceedings. Without going into detail about the nature of the Tribunal decision, it is relevant to note that while the applicant claimed to fear persecution in Bangladesh, the Tribunal found, critically, that the major difficulty the applicant faced in persuading it that he was owed protection obligations in Australia, was the fact that the Awami League was no longer in power in Bangladesh. The Tribunal relied on information about the then current circumstances in Bangladesh and also information about what had occurred in relation to false charges in the courts in Pakistan in rejecting his claims.
None of Raphael FM, Moore J, or indeed, the Justices of the High Court found any arguable basis for a ground of review. Nor am I persuaded on the material before me that there is such a basis in the grounds now raised.
The application should be dismissed. That makes it unnecessary to determine the alternative basis on which orders are sought by the respondent, that being that issue estoppel on the respondent's notice of objection would arise because, while none of the Courts had said so expressly, in the prior proceeding, findings were made which had the effect of an implied finding that the decision was a privative clause decision. See SZAFO v Minister for Immigration [2005] FMCA 885 at [27] and [15].
It is appropriate to make the order that is sought by the respondent for dismissal of the proceedings. The respondent also seeks an order that the Registry not accept any new application from the applicant without leave of the Court and I will hear submissions before I rule on that aspect of the application.
RECORDED : NOT TRANSCRIBED
There are two outstanding issues. First the respondent sought an order that the Registry not accept any new application from the applicant seeking to challenge the decision of the Refugee Review Tribunal without leave of the Court. The Court's power to make such an order, apart from the inherent power that it has, is to be found in Rule 13.11 of the Federal Magistrates Court Rules. I am not persuaded on the material before me that it is appropriate in this particular case to make such an order, although it may well be otherwise if the matter came before me again. I am not satisfied that at this stage the applicant can be said to have ‘habitually, persistently’ and without reasonable grounds instituted vexatious proceedings against the respondent.
The respondent also seeks that the applicant pay the costs of these proceedings in the sum of $2,000. The applicant indicates that he will pay later. It is appropriate that the unsuccessful applicant should meet the costs of the respondent, and I consider that the amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 July 2005