SZAFO v Minister for Immigration
[2005] FMCA 885
•10 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAFO v MINISTER FOR IMMIGRATION | [2005] FMCA 885 |
| MIGRATION – RRT decision – unsuccessful previous challenge in Federal Magistrate’s Court, Federal Court and High Court – application summarily dismissed as an abuse of process. |
| Migration Act 1958 (Cth), ss.474(1), 477(1)(a), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Wong v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 242 Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 SZAFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 158 SZAFO v Minister for Immigration [2003] FMCA 403 |
| Applicant: | SZAFO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 989 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 10 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr A J Crockett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Proceeding dismissed under R13.10(c) as an abuse of process of the court.
Applicant to pay the respondent’s costs in the sum of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 989 of 2005
| SZAFO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive application in this matter is an application filed on
20 April 2005. It invokes the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth), which gives it “the same jurisdiction as the Federal Court in relation to matters arising under this Act”. The application is made under s.39B of the Judiciary Act 1903 (Cth), and seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal handed down on 30 January 2003. The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.
For reasons which I shall give, it is unnecessary for me to set out in detail the grounds for seeking judicial review as set out in the application. They include allegations that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction, and that there was denial of natural justice, and other criticisms which less clearly raised allegations of jurisdictional error.
On 28 April 2005, the respondent filed a notice of objection to competency, putting in issue whether the decision of the Tribunal is a privative clause decision as defined under s.474 of the Migration Act. If the Minister succeeds in this contention, then the Court would be barred from giving the relief sought by the applicant, and the applicant's present application would also be long out of time under s.477(1)(a). The Minister’s contention would succeed if, applying Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the court held that the Tribunal’s decision was not affected by any jurisdictional error.
At the first Court date held on 6 May 2005, the Minister filed in Court and served on the applicant a notice of motion that the substantive application be dismissed under Federal Magistrate's Rule 13.10(c), which provides the ground for summary dismissal that:
the proceeding or claim for relief is an abuse of the process of the Court.
The motion also invokes paragraph (b) of that rule, which provides the power of summary dismissal where:
the proceeding or claim for relief is frivolous or vexatious.
For reasons which follow, I think the better way of dealing with the present situation is under paragraph (c).
In support of the motion, an affidavit has been filed which sets out a history of litigation previously engaged in by the applicant against the same respondent in relation to the same decision of the Tribunal.
In proceedings SZ 256 of 2003 filed in the Federal Magistrate's Court, the applicant in his amended application invoked the same jurisdiction as the present application and sought relief of the same sort. Numerous grounds were alleged, and it would seem further grounds were raised in the course of a final hearing conducted before Federal Magistrate Driver on 8 September 2003.
It is unnecessary for me to set out all the grounds argued by the applicant and to explain how his Honour dealt with them. This information can be found in his Honour's judgment entitled SZAFO v Minister for Immigration [2003] FMCA 403.
It is clear from this judgment that the applicant was aware that he could not obtain relief without establishing jurisdictional error affecting the Tribunal decision, and many of his grounds were framed expressly to make that contention. Driver FM dealt with each of the grounds for review argued by the applicant, and found none of them established. He concluded in [23]:
The applicant has failed to establish any jurisdictional error by the RRT. No error is apparent to me from the Court Book. Accordingly, the decision of the RRT is a privative clause decision.
The applicant exercised his right of appeal to the Federal Court of Australia in proceedings N1458 of 2003, which came on for final hearing before Bennett J on 6 February 2004. Her Honour gave a reserved judgment on 1 March 2004.
It is apparent from her Honours reasons, which have the name SZAFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 158, that the applicant re-litigated all the arguments that had been addressed by Federal Magistrate Driver, and also raised many further contentions in a written submission and in his oral arguments. Her Honour was not persuaded by any of them, and in [49] expressed her conclusion:
The applicant has failed to establish jurisdictional error on the part of the Tribunal, or error on the part of the Federal Magistrate. The appeal should be dismissed with costs.
The applicant then exercised his right to seek special leave to appeal to the High Court of Australia and filed an application on 24 March 2004, in proceedings S99 of 2004. It is apparent that he was fully alive to the significance of the finding by Federal Magistrate Driver that the Tribunal decision was a privative clause decision, since one of his grounds is expressed:
c) the Full Federal Court ought to have found that the Federal Magistrate erred in holding that the decision of the Tribunal was a privative clause decision, and s 474(1) precludes any decision by the Federal Court and failed to consider the recent two decisions of the High Court of Australia.
The same contention was made in a draft notice of appeal filed in the High Court.
His application was listed before Hayne and Callinan JJ on 6 April 2005. Hayne J said when publishing a disposition of the proceeding pursuant to High Court Rule 41.11.1:
There is no reason to doubt the correctness of the reasons of or orders made by the Federal Court of Australia. An appeal to this Court would enjoy no prospect of success.
On the above history it appears to me plain that the present application is doomed to failure, and is also an abuse of Court process, due to the finding made by Federal Magistrate Driver, upheld in the Federal Court and not cast doubt upon in the High Court, that the RRT decision is a privative clause decision. I consider that an issue estoppel on the Minister’s objection to competency arises by reason of that finding in previous proceedings, according to the principles identified in the well known passage of Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-532. The applicant has had no answer to this contention in his written argument, nor in his oral submissions to me today.
I also consider, were it necessary for me to do so, that the applicant has not established any basis for being allowed to raise fresh grounds of review in new proceedings, even assuming that he wishes to do so.
It is unclear whether he wishes to raise a fresh argument which he had not previously put to Driver FM or Bennett J, since in his oral submissions to me today he was unable to point to one. I understood him to be agreeing that the arguments he wants to put are the same as he has previously put to Federal Magistrate Driver. However, the application he has filed in this Court might raise one fresh allegation concerning procedural fairness in relation to the provision of an interpreter, and possibly one or more of his other contentions might not have been covered by his previous arguments. I do not propose to engage in a detailed analysis of his arguments which were addressed in the previous proceedings so as to compare them with the documents that he has filed now. I shall assume that there might be a ground that was not previously articulated in the same way.
In response to the Minister’s motion, the applicant filed a written argument which adopts arguments taken from precedents familiar to the Court, and which have no apparent bearing on the present case.
It includes a well known Muin and Lie submission, which commences with the proposition: “Muin and Lie's case is perfectly identical with my case, and I want to depend on the grounds of Muin and Lie.”
At today’s hearing, I invited the applicant to tell me why he should be allowed to raise any new arguments, and all he could say was that he still believed there was some error in the Tribunal's decision. He also said he had a lot of new evidence, and wanted an opportunity to put it to the Tribunal. Nothing he has said, or that I have seen in the material before me, suggests that he has any reasonable explanation for raising a new ground which was not presented in the previous proceedings, nor that there are special circumstances to allow him to raise new arguments in the present proceedings.
In my view, it would be unreasonable for the applicant not to have raised in the previous proceedings all his arguments which he now wants to puts forward, particularly noting the ample opportunities which were afforded to him before Federal Magistrate Driver and Bennett J. It is apparent from their judgments that they gave him every opportunity to present all his arguments. In my view, even if strict principles of res judicata and issue estoppel do not arise, principles of Anshun estoppel would also cause me to characterise the present application as an abuse of the process of Court, and to have no prospects of success if allowed to proceed to a final hearing (see Wong v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 242).
For the above reasons, I shall make the order sought by the Minister.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 28 June 2005
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