SZAEM v Minister for Immigration - [2005] FMCA 894

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAEM & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 894

MIGRATION – RRT decision – previous unsuccessful judicial review proceedings – estoppels arising – application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001, r.13.10(c)
High Court Rules 2004, r.41.11.1
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 474(1), 477, 477(1A), 483A

Blair v Curran (1939) 62 CLR 464
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SZAEM & Ors v Minister for Immigration [2003] FMCA 368
SZAEM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 66
SZAEM & Ors v MIMIA [2005] HCATrans 74
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

First Applicant:	SZAEM
Second Applicant:	SZAEN
Third Applicant:	SZAEO
Fourth Applicant:	SZAEQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 678 of 2005

Judgment of:

Smith FM

Hearing date:

20 June 2005

Delivered at:

Sydney

Delivered on:

20 June 2005

REPRESENTATION

Counsel for the Applicants:

First and second applicants in person

Counsel for the Respondent:

Ms B Rayment

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Substantive application dismissed under Rule 13.10(c) as an abuse of the process of the Court.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 23 January 2003, reference N00/35345, shall be accepted for filing without prior leave of the Court.
First, second and third applicants to pay the respondent’s costs in the sum of $3800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 678 of 2005

SZAEM, SZAEN, SZAEO & SZAEQ

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive proceeding in this matter is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) and s.39B of the Judiciary Act 1903 (Cth), which seeks to set aside a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 January 2003. The Tribunal affirmed a decision of a delegate refusing to grant protection visas to the applicants, who are a husband and wife and their two children.
The application was filed on 17 March 2005, and at the first court date on 31 March 2005 the applicants were served by the respondent with a notice of motion and supporting affidavit, seeking summary dismissal of the proceeding on the basis that, inter alia, it is an abuse of process. The motion came before me on 9 May 2005, and I then set it down for hearing today.
The evidence presented in support of the motion reveals the following litigation history of the applicants in relation to the present decision of the Tribunal.
On 17 February 2003 the applicants commenced a previous proceeding by an application in the Federal Magistrates Court under the same jurisdiction as the present proceeding. Their application did not raise any ground of jurisdictional error, but repeated claims to be refugees from their country of nationality, Pakistan. They appeared at a final hearing on that application before Driver FM on 27 August 2003, and his Honour gave reasons for dismissing the application which have been published as SZAEM & Ors v Minister for Immigration [2003] FMCA 368. His Honour’s reasons contained findings that:
6.The applicants have not been able to demonstrate any error of law going to the jurisdiction of the RRT.
7.… No jurisdictional error having been found in the decision of the RRT, I must dismiss the application.
I take those findings to address the issue of whether the Tribunal’s decision was a privative clause decision for the purposes of ss.474 and 477 of the Migration Act, as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 which had been delivered many months earlier. Implicitly, Driver FM found against the applicants on this issue, so that their entitlement to relief was barred by s.474(1).
The applicants appealed to the Federal Court of Australia with a notice of appeal which included two allegations which might, properly particularised, have raised jurisdictional error:
2.The Tribunal misunderstood the applicants’ claim …
3.The Tribunal did not provide the applicants an opportunity to comment on the information which the Tribunal relied on …
However, no particulars of those allegations were provided.
The appeal came before Conti J for final hearing on 6 February 2004. In a judgment published as SZAEM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 66, his Honour noted that the applicants had been unsuccessful before Driver FM:
… because of the view taken by the RRT as to the lack of credibility of the facts put forward by the appellant, and because the appellant failed to identify any legal error in the RRT’s decision, but merely took issue with its findings of fact.
The grounds of appeal from the decision of Driver FM disclose no viable basis in law for setting aside his Honour’s decision.
His Honour referred to the appellants’ use of precedents without any realistic endeavour to “gear the same to the circumstances placed before his Honour”, and said the appellants’ submissions contained “a number of legal propositions, expressed in general or unspecific terms, … which are not specifically or else appropriately related to any findings or the conduct of the RRT and of the Court below”. His Honour said: “The appeal is plainly misconceived and lacking any viable basis or merit according to law”. The appeal was dismissed with costs.
The applicants applied for special leave to appeal to the High Court of Australia, and on 15 March 2004 filed a summary of argument and draft notice of appeal. This, too, revealed the use of precedents with no apparent application to the previous decision concerning the applicants. Thus, it raised an allegation that the Tribunal proceedings involved a failure to accord procedural fairness because “my case is identical to Muin”, with irrelevant contentions that are familiar to all courts acting in this jurisdiction.
The application for special leave was dismissed under a determination made pursuant to High Court rule 41.11.1. When announcing the decision of the High Court, McHugh J said in SZAEM & Ors v MIMIA [2005] HCATrans 74:
The application for special leave to appeal to this Court has a pro forma character, and relies on Muin v Refugee Review Tribunal (2002) 190 ALR 601. There is no demonstration of any link between the complaints made and the circumstances of the case. An appeal would have no prospects of success.
The High Court’s order was pronounced on 3 March 2005, and on 17 March 2005 the applicants commenced the present fresh proceedings in this Court. Their application, once again, makes use of a precedent familiar to the Court, which recites a litany of general heads of judicial review without any particulars showing any relevance to the present decision of the Tribunal.
The applicants have filed further bundles of documents in response to the Minister’s motion. These bear the same character as the documents they filed in the previous litigation. They include the submission alleging: “Muin and Lie’s case is perfectly identical with my case …”.
The applicants have not addressed issues of estoppel arising under the Minister’s notice of motion, of which they were fully informed by way of a written submission filed on behalf of the Minister. The gist of their response, both in their written submissions and orally to me today, was that they would have fresh or further evidence to present to the Tribunal in support of their claims to be refugees. It is unnecessary for me to examine the material presented to show this, since, in my view, it does not provide a proper ground to allow further litigation to be commenced concerning this Tribunal decision, even if the Court had a discretion to allow this.
However, in my view, the present application is doomed to failure and is an abuse of process on principles of estoppel. The Minister has filed a notice of objection to competency which pleads the time limitation on judicial review proceedings set out in s.477(1A) of the Migration Act, which would bar the present proceeding unless the Court could decide that the Tribunal decision was not a privative clause decision. As I have indicated, that issue has already been decided by Driver FM against the applicants in the previous litigation. In my view, his determination gives rise to an issue estoppel which would provide an absolute defence to the proceedings were they allowed to come to final hearing (see Blair v Curran (1939) 62 CLR 464 at 531‑532).
Moreover, even if I were wrong in that conclusion, the applicants would be met at a final hearing with a defence by way of ‘Anshun estoppel’, which, on the material they have presented to me, they have no prospects of answering. They have not been able to point to, and I have not been able to identify in the material they have filed, any arguable ground of judicial review which they have not previously raised and which would be reasonable for them not to have raised in the earlier proceedings. They have not been able to point to relevant special circumstances that should allow them to raise a fresh ground of judicial review, even if I could identify such a ground (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242). As their Honours’ judgment in Wong (supra) points out, the principles of ‘Anshun estoppel’ are firmly based on the principle that it is an abuse of process to allow parties to litigate repeatedly matters that have been finally determined in previously concluded court proceedings.
In the present circumstances, I am satisfied that the applicants’ commencement of fresh proceedings does amount to an abuse of the process of the Court, and that it is appropriate for me to exercise the Court’s power to summarily dismiss the proceeding under r.13.10(c) of the Federal Magistrates Court Rules 2001.
I also consider that in view of the persistent filing by the applicants of documents which they do not understand, and which do not properly raise relevant issues for judicial determination, I should direct that no further application by the applicants relating to the present Tribunal decision shall be received by a Registry of this Court without the prior leave of the Court. I note that the Court’s power to make such a direction has been upheld by Jacobson J in the case of SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 at [29].
RECORDED : NOT TRANSCRIBED
I order the first, second and third applicants to pay the respondent’s costs in the sum of $3800.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 June 2005