SZAGN v Minister for Immigration
[2005] FMCA 1065
•1 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1065 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – Notice of Motion seeking summary dismissal – res judicata – issue estoppel – Anshun estoppel – abuse of process – Notice of Motion upheld – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 477(1A)
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783
Twist v Randwick Municipal Council (1976) 136 CLR 106
SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 188
Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
Re Ruddock; Ex parte LX [2003] FCA 561
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650
Samson v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 837
SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377
NAYF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 196
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Walton v Gardiner (1993) 177 CLR 378
Rogers v The Queen (1994) 181 CLR 251
Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314
Johnson v Gore Wood & Co [2002] 2 AC 1
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
| Applicant: | SZAGN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1129 of 2005 |
| Delivered on: | 1 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 26 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Ms R A Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s notice of motion is upheld.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1129 of 2005
| SZAGN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZAGN”.
By application filed on 13 May 2005, the respondent moves the Court for orders that proceedings be dismissed. On 26 July 2005 the respondent filed an amended Notice of Motion that the application for judicial review filed on 3 May 2005 be dismissed on the grounds that:
a)The doctrine of res judicata applies and is a complete bar to the application.
b)The doctrine of issue estoppel applies and is a complete bar to the application.
c)Anshun estoppel applies and there are no special circumstances to justify its non-application.
d)Pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules, no reasonable cause of action is disclosed in relation to the proceedings.
e)Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 May 2005.
For the purpose of this Notice of Motion the respondent applies for the affidavits of Catherine Jane Gray sworn on 13 May 2005 (“the first affidavit of Ms Gray”) and 11 July 2005 (“the second affidavit of Ms Gray”) to be admitted into evidence.
Notice of Objection to Competency
On 16 May 2005 the respondents filed a Notice of Objection to Competency with the following objections:
1.The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 17 February 2003 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act
2.The applicant has not identified any other decision that is sought to be reviewed.
Background
The applicant, a citizen of Bangladesh, arrived in Australia on
16 November 2000. He lodged an application for a protection visa on 28 December 2000 and on 4 April 2001 the delegate refused the application. On 29 April 2001, the applicant lodged an application for review with the Tribunal. By a decision dated 17 February 2003, the Tribunal affirmed the decisions of the delegate not to grant the applicant a protection visa. On 14 March 2003, the applicant commenced proceedings in the Federal Magistrates Court of Australia, challenging the validity of the decision of the Tribunal. On
20 November 2003, Raphael FM dismissed that application with costs. On 5 December 2003, the applicant lodged a notice of appeal against the orders and judgment of Raphael FM in the Federal Court. On
26 February 2004, the Madgwick J dismissed the appeal. On 22 April 2004, the applicant lodged an application for special leave to appeal in the High Court. On 6 April 2005, the High Court dismissed the application for a grant of special leave to appeal. On 3 May 2005, the applicant filed the current proceedings in the Federal Magistrates Court. On 13 May 2005, the respondent filed the present notice of motion and the affidavit of Ms Gray in support, sworn the same day.
The Tribunal’s findings and reasons
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the student wing of the Bangladesh National Party (BNP), and to have suffered assaults and false charges by members of the student wing of the rival Awami League (AL). The applicant claimed that he had been targeted for assassination, and had to move between Dhaka and Khulna before leaving Bangladesh in November 2000.
The Tribunal found that the applicant had exaggerated or fabricated his claims and that he did not genuinely fear persecution in Bangladesh. The Tribunal noted a number of reasons for this conclusion, including the implausibility of the applicant’s claims, the contradictions between the initial claims in his protection visa application and those made at the hearing, his admission that his migration agent had “spiced up” some of his claims, his demeanour when questioned by the Tribunal, his delay in seeking to leave Bangladesh after the issue of his passport and visa, his ability to leave Bangladesh on a passport issued legally in his own name, and the inconsistency of his claims with independent country information (“ICI”).
Further, the Tribunal concluded that if the applicant had any difficulties in Dhaka and Khulna, which were the only areas he made claims in relation to, it was reasonable to expect him to relocate within Bangladesh.
Hearing
The matter was listed for an interlocutory hearing at 10.15 a.m. The matter did not immediately proceed at that time because there was no appearance by the applicant. Neither the Court nor the respondent solicitors had received any notification from the applicant to indicate whether he intended to appear before the Court for the scheduled hearing. The matter was called before me at 10.35 a.m. but the applicant failed to appear.
Ms R A Pepper, Counsel for the respondent, made an application to the Court that the hearing should proceed generally in the absence of the applicant pursuant to Part 13, Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). In support of that application, Counsel for the respondent drew the Court’s attention to the Short Minutes of Order made by Registrar Tesoriero on 2 June 2005 when this current matter (SYG 1129 of 2005) came before the Court at the first court date directions hearing. It was noted that the matter had been the subject of previous application for judicial review in the Federal Magistrates Court, an appeal to the Federal Court and an application for Special Leave to the High Court where all previous applications had been dismissed and judgments in relation to each matter are available at SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 546 and SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 342. On that occasion Short Minutes of Order were made foreshadowing a Notice of Motion for summary dismissal and Notice of Objection to Competency and a listing was made before this Court on 12 July 2005 at 10.15 a.m.
By letter dated 10 June 2005 the solicitors for the respondent advised the applicant that the original hearing had been adjourned and that the respondent’s Notice of Motion and Notice of Objection to Competency were listed on 26 July 2005 at 10.15 a.m. That letter was forwarded to the applicant’s post office box at Strawberry Hills, New South Wales. A further letter dated 12 July 2005 forwarded to the applicant contained the respondent’s submissions, an unfiled copy of the respondent’s Notice of Motion and an affidavit of Catherine Jane Gray filed in the Court on 12 July 2005. That letter confirmed that the Notice of Motion would be heard in this Court on 26 July 2005 at 10.15 a.m. Neither of those letters has been returned to sender and there is no indication from any other source that the applicant was not in receipt of those letters.
Because of the nature of the litigation history of this applicant and the recent directions hearing by the Registrar in respect of the latest application at which the applicant was present, I believe this hearing should proceed under Rule 13.03A(d) of the Rules. The contents of the pleadings in the current application are not substantially different from those filed in the application made on 14 March 2003 which has been considered by this Court, the Federal Court and the Special Leave application to the High Court. There does not appear to be any significant new pleadings in the present application.
Respondent’s application
The respondent’s submissions on the summary dismissal of the application in relation to review of the delegate’s decision are as follows. Firstly, it is submitted that the application discloses no reasonable cause of action because:
a)even if there were any jurisdictional error affecting the decision of the delegate, it was “cured” by the decision of the Tribunal, which has been held not to be invalid; and
b)in any event, the applicant is estopped on Anshun principles from attacking this decision in the present proceedings. Even if they are capable of being attacked, they should have been attacked when the Tribunal’s decision was challenged.
Secondly, the respondent submits that the delay in raising the present challenge in conjunction with the estoppel also reveals an abuse of process. As a general principle, the Court should not hear a challenge to a primary decision and a review decision at the same time. If the review decision is flawed, it will be sufficient to provide relief in respect of it. If the review decision is not flawed, it will have “cured” any defect in the primary decision: Wu v Minister for Immigration & Ethnic Affairs per Wilcox J at 298-299. That a valid Tribunal decision will “cure” a primary decision is established law which has been recently approved by the Full Court: Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs per Gyles J at [92]-[96]; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs; and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed, see also NAMW v Minister for Immigration & Multicultural & Indigenous Affairs; Twist v Randwick Municipal Council per Mason J (as he then was) at 116. Thus a Court will not give relief in respect of a delegate’s decision when a person affected by the decision has had the opportunity to seek a de novo merits review and that opportunity was taken and the decision on review was not flawed by error subject to correction in judicial review proceedings. It follows that, the applicant’s present application to review the delegate’s decision must fail.
The respondent’s submissions in respect of the review of the Tribunal’s decision is as follows:
Jurisdiction
a)A notice of objection to competency was filed by the respondent on the basis that the application for judicial review was filed outside the 28 day time limit specified under s.477(1A) of the Act.
b)On 17 February 2003, the Tribunal made a decision affirming the decision of the delegate to refuse the applicant a protection visa. The current application was filed on 3 May 2005 and the applicant acknowledges in the application that he was notified of the Tribunal decision on or about 19 February 2003. The current application was filed well outside the 28 day period. Accordingly, there is non-compliance with s.477(1A) of the Act.
c)Insofar as s.477(1A) of the Act refers to a “privative clause decision,” Federal Magistrate Raphael dismissed the applicant’s previous proceedings and stated at paragraph 15 of his written reasons:
“I am unable to find, in all the circumstances, any grounds upon which the applicant is entitled to review of this decision under s.39B of the Judiciary Act 1903 (Cth). I dismiss the application.”
d)Furthermore, on 26 February 2004, Justice Madgwick dismissed the applicant’s appeal and stated at paragraph 17 of the judgment: “…it cannot be said that the Member’s decision was made in consequence of, or involved jurisdictional error or a failure to exercise jurisdiction.”
e)On 6 April 2005, the applicant’s special leave application to the High Court was dismissed. In this regard, Gummow and Kirby JJ held that: “This application for special leave raises no arguable error in the decision of the Federal Court of Australia or the Federal Magistrates Court. The application for special leave should be dismissed with costs.” (SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 188)
f)Accordingly, the Tribunal decision dated 17 February 2003 should properly be regarded as a “privative clause decision.” As the applicant has filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no jurisdiction to hear the application.
Summary dismissal
g)Alternatively, the respondent moves on the notice of motion filed on the 13 May 2005 and contends that the application for judicial review insofar as it relates to review of the Tribunal’s decision ought to be summarily dismissed for the following reasons:
Res judicata
i)The doctrine of res judicata applies to the present application because it seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review application. The substratum of facts giving rise to the right to review are the same, the substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not differ in any material respect: Sharma v State Rail Authority of New South Wales at 397; Taylor v Ansett Transport Industries Ltd per Fisher J at 354-56 and Ryan J at 365; Somanader v Minister for Immigration & Multicultural Affairs per Merkel J; Re Ruddock; Ex parte LX per Heerey J at [48]. Res judicata is a complete bar to the application and the Court has no discretion to allow the matter to continue.
Issue estoppel
ii)The doctrine of issue estoppel also applies to the current application as the issues raised in this application have previously been put in issue and determined between the parties.
Anshun estoppel
iii)In any event, the proceedings are at least barred by the operation of the doctrine of Anshun estoppel as the matters put forward in the current proceedings could have been put in the applicant’s earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd at 602. Anshun estoppel prevents a party from raising in new proceedings matters that properly belonged to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence: Wong v Minister for Immigration & Multicultural & Indigenous Affairs at [49]; Daniel v Minister for Immigration & Multicultural & Indigenous Affairs at [25]. All the grounds raised in the current application could have been raised in the applicant’s previous proceedings in the Federal Court. In addition, the applicant has not established “special circumstances” that would justify the Court exercising its discretion not to apply the Anshun principle: BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [22]-[30].
Abuse of process
iv)The current proceedings are also an abuse of process and ought to be dismissed pursuant to Part 13, Rule 13.10(c) of the Rules.
h)In the current application, the applicant seeks to re-agitate grounds that either were, or could have been, argued in the previous proceedings dismissed in the Federal Magistrates Court, the Federal Court and the High Court. It is clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings: SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs per Wilcox J at [11]; Samson v Minister for Immigration & Multicultural & Indigenous Affairs; SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs per Barnes FM.
i)The applicant has had ample opportunity to bring forward any legitimate claim and to inform the Court and the respondent of the nature and evidential basis for his claims, but did not do so: NAYF v Minister for Immigration & Multicultural & Indigenous Affairs. Moreover, as the applicant’s current proceedings suffer from the same vice as the previous proceedings, namely a lack of particularity, it is open to this Court to find that it constitutes an abuse of process: SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs per Moore J.
j)Having regard to the applicant’s litigation history and the failure of the applicant to provide any explanation for the delay in bringing the current application, it is clearly open to the Court to draw the strong inference that the applicant has filed the present application for the collateral purpose of extending the period of his stay in Australia: NALE v Minister for Immigration & Multicultural & Indigenous Affairs at [12].
k)Also, the repeated bringing of similar applications is an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner at 393; Rogers v The Queen at 255-256; Chu v Minister for Immigration & Ethnic Affairs at 323-326. This is clearly the vice with the present application, which has the potential to result in inconsistent findings between members of the same Court with respect to the same subject matter. The Court must also have regard to the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter: Johnson v Gore Wood & Co per Lord Bingham at 22-34; see also SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs (“SZAWW”). Such a consideration reinforces the submissions of the respondent that the current application ought to be dismissed.
l)In SZAWW, for example, the Court applied the extended notion of abuse of process in Walton v Gardiner when holding that the applicant should not “be permitted to wait seven years to take advantage of a change in the law to reactivate proceedings that had earlier been abandoned”. The Court further held that it would be unfair to the Minister to permit multiple applications for review.
m)These proceedings are a clear abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that in defending a matter which has already occupied the time and resources of this Court, the Federal Court and the High Court.
n)Insofar as the application for judicial review filed on 3 May 2005 seeks to review the decision of the delegate dated 4 April 2001, it is summarily dismissed as an abuse of process and because it fails to disclose a reasonable cause of action. Insofar as the application for judicial review seeks to review the decision of the Tribunal dated 17 February 2003, the notice of objection to competency filed on 16 May 2005 ought to be upheld and the application be dismissed as incompetent, or further and in the alternative, the application ought to be summarily dismissed because:
i)the principles of res judicata, issue estoppel and/or Anshun estoppel apply and the applicant is barred from bringing the proceedings; and/or
ii)the application amounts to an abuse of process; and/or
iii)The application discloses no reasonable cause of action.
o)In the circumstances the applicant ought to pay the respondent’s costs of the notices on an indemnity basis and an order is sought that no further application by the applicant to review the decision of the Refugee Review Tribunal dated 17 February 2003 or the delegate’s decision dated 4 April 2001 be accepted for filing except with leave of the Court.
Conclusion
Counsel for the respondent argued that in the present case the cause of action was the same as that previously argued before Raphael FM in this Court and Magdwick J in the Federal Court and in the Special Leave application before the High Court. Both actions sought review of the same decision of the Tribunal made on 17 February 2003 and both sought to rely on s.39 of the Judiciary Act 1903 (Cth). In the first application filed on 14 March 2003, the relief against the decision of the Tribunal was unstated. In the application filed on 3 May 2005 sought the applicant made a claim for a declaration and formal writs but the relief sought was essentially the same. The parties in both proceedings are the same. In my view, the submissions made for and on behalf of the respondent in relation to res judicata are correct. An analysis of the grounds relied upon by the applicant previously before this Court, the Federal Court and ultimately the High Court, and then again before this Court, although expressed in different terms and presented in a more formal manner, in my view, raise the same cause of action. I am satisfied applying the authority cited by the respondent Counsel that this is a case where the principles of res judicata apply and where the applicant should be barred from pursuing this action.
The grounds relied upon in the current application, although more formally expressed, are essentially the same as relied upon in the previous application before this Court, the Federal Court and in the Special Leave application before the High Court and have produced a set of circumstances on which issue estoppel applies. While I acknowledge that the pleadings in the current action are more sophisticated than in the original pleadings and were probably prepared with the assistance of some third party with legal knowledge, I am satisfied that the matters being put forward in the current proceedings if they have not been put already, could have been put, in the applicant’s earlier proceedings, resulting in the current proceedings being barred by the operation of the doctrine of Anshun estoppel. The issues being raised in the current proceedings properly belong to the earlier proceedings which could have been brought forward by the applicant exercising reasonable diligence. I have considered the arguments put froward by Counsel for the respondent and, in my view, there is no issue preventing this Court from applying the principles of res judicata, issue estoppel or Anshun estoppel in this matter.
I have considered and agree with the argument submitted by Counsel for the respondent that the current proceedings are an abuse of process and should be dismissed pursuant to the Rules.
Both sets of pleadings referred to the Tribunal’s decision of
17 February 2003. No other proceedings were referred to or identified in relation to this matter. Nor was there any reference in the previous decisions that provided the applicant with any protection to the extent that the normal time limits would not prevail because of a ruling or direction of a Court. In the absence of such protection, the applicant was obliged to abide by the provisions of the Act which he clearly failed to do and there was no explanation for the delay. The objection to competency in the circumstances must succeed.
The Notice of Motion filed on 13 May 2005 by the respondent must succeed. The doctrines of res judicata and issue estoppel apply and there are no special circumstances to justify the non application of Anshun estoppel. Further, the proceedings are an abuse of process and are dismissed pursuant to Rule 13.10(c) of the Rules.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 1 August 2005
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