SZAKL v Minister for Immigration
[2005] FMCA 1965
•14 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKL v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1965 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh – bias – allegation of bias. PRACTICE & PROCEDURE – Competency – objection to competency – abuse of process – res judicata – where application previously heard and dismissed by Federal Magistrates Court – where application for special leave to appeal refused by High Court – summary dismissal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477(1A) Federal Magistrates Court Rules 1999 (Cth) s.15 Federal Magistrates Court Rules 2001 Rule 13.10 |
| Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 cited Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 cited Rogers v R (1994) 181 CLR 251 cited |
| Applicant: | SZAKL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2348 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2005 |
| Date of Last Submission: | 14 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Notice of Motion filed 24th November 2005 is upheld.
That the application is dismissed as an abuse of process.
That the Applicant be restrained from instituting any proceedings for review of the decision of the Refugee Review Tribunal made on
10th March 2003 (“the Tribunal decision”) without leave of the Court.
That no application by the Applicant for review of the Tribunal decision is to be accepted for filing at any Registry of the Court without leave of the Court.
That the Applicant pay the First Respondent’s costs in the sum of $6,500.00 calculated on an indemnity basis.
That the waiver of the filing fee on the application made on
24 August 2005 is revoked.
That the Applicant is to pay Court costs of $288.00 within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2348 of 2005
| SZAKL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is in fact a notice of motion. It is a notice of motion brought by the first respondent, Minister for Immigration and Multicultural and Indigenous Affairs. The notice of motion is directed towards an application filed by the applicant on
24 August 2005.
The substantive application filed by the applicant is an application to review a decision of the Refugee Review Tribunal that was handed down on 3 April 2003. The application, as summed up by Ms Henderson of counsel for the respondent, relates to two issues: the first, the applicant's claim that he is in fact a refugee, and second, complaints as to procedural matters relating to the conduct of the Tribunal hearing. Not surprisingly, because the application was filed at the Court on 24 August this year seeking review of a decision of the Refugee Review Tribunal handed down on 3 April 2003, the respondent Minister has filed a notice of objection to competency.
That objection complains that the substantive application breaches sub‑s. (1A) of s.477 of the Migration Act in that the application was not made within 28 days of the notification of the decision. For reasons that will become clear at the end of this decision, it will not be necessary for me to rule on the notice of objection to competency.
The primary interlocutory application brought by the respondent is in fact the notice of motion that was filed on 24 November this year.
That notice of motion seeks summary dismissal of the applicant's application under r.13.10 of the Federal Magistrates Court Rules. There are two bases given: (1) that the proceeding is frivolous or vexatious, and (2) that the proceeding is otherwise an abuse of process. The notice of motion argues further or in the alternative there are three other reasons why these proceedings are barred or that the applicant is estopped from bringing this application. They are, going from the general to the particular, first of all, the doctrine of res judicata, second, the doctrine of issue estoppel, and third, the doctrine of Anshun estoppel. Anshun estoppel arises from a 1981 decision of the Port of Melbourne Authority v Anshun Pty Ltd.
Put simply, what the respondent is saying is that the applicant should not be allowed to bring this application to be heard on the basis of a final hearing because it already has been heard. The decision of the Refugee Review Tribunal about which the applicant complains should not be reviewed by this Court because it already has been reviewed by this Court. Furthermore, the respondent says that not only has the decision been reviewed by this Court, but that decision has been appealed in the Federal Court, the Full Court of the Federal Court, and that appeal has been unsuccessful, and that an application has been made to the High Court of Australia for special leave to appeal against the decision of the Federal Court. That application has already been dismissed.
In effect, the respondent is saying that the matter has been heard and has gone through the entire process of the Court system and there is in fact nothing more for the Court to hear. There is no new claim, no new grievance, and no new argument. The respondent Minister relies on an affidavit of Bonnie Mendelsohn, solicitor, that was filed on
24 November. Ms Mendelsohn deposes in her affidavit as to her employment with a firm of solicitors who are retained by the Minister and how she makes this affidavit from her own knowledge and from reading her employer's files relating not only to this application but to previous applications made by the applicant.
There is no challenge to Ms Mendelsohn’s affidavit. She has not been required for cross‑examination on her affidavit, although she has made herself available at Court today in case she should be called upon to do so. But it has never been an issue at any time that there should be any challenge to this affidavit. Accordingly, it is appropriate for me to accept the evidence contained in this affidavit. Not surprisingly, the affidavit annexes a copy of the decision of the Tribunal which is sought to be reviewed. The affidavit also annexes a copy of the previous decision by the Federal Magistrates Court where my learned brother Driver FM heard and dismissed the application on 17 March 2004. The Court's citation for that decision is SZAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 170.
I have had an opportunity of reading through his Honour's decision.
It is, with respect, a comprehensive decision and makes it quite clear that the applicant attended Court on the last occasion to prosecute his application. His Honour found at paragraph 12 that there was no jurisdictional error in the decision of the Refugee Review Tribunal. His Honour dismissed the application with costs.
The affidavit shows that the applicant appealed to the Federal Court to have the matter heard by the Full Court of the Federal Court and did so on 1 April 2004. On 31 August 2004 the late Hill J exercising the jurisdiction of the Full Court heard that appeal. It is apparent from his Honour's judgment, which I have read, that the applicant attended Court and prosecuted his own appeal. His Honour considered the arguments raised and dismissed the appeal with costs. The citation to that decision is SZAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1127.
The applicant on 17 September 2004 sought special leave to appeal to the High Court of Australia. That application for special leave to appeal was considered by Gleeson CJ and Gummow J on
4 August 2005. Their Honours dismissed the application. In the judgment of the learned Chief Justice his Honour said:
We have reviewed the parties' submissions and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There are insufficient prospects of success in any appeal to this Court from the Federal Court. Accordingly, special leave to appeal is refused with costs.
The media neutral citation is [2005] HCA Trans 495.
Undaunted by the string of refusals, the applicant filed a fresh application in the Federal Magistrates Court. He did so on
24 August 2005 and that is the application that is subject to challenge by the notice of motion before me. It is clear that this application is no more than an attempt to relitigate matters that have already been well and truly aired in the Federal Magistrates Court and in the Federal Court and, at least in written form, before two learned Justices of the High Court of Australia.
In, with respect, an elegantly drafted outline of submissions from Ms Henderson of counsel there appears a comprehensive summary not only of the course of the applicant's litigation history, but a very useful précis of the issues that were argued. I would have to say that I found this document very useful and it clearly sets out the continual efforts by the applicant right up to this current application to argue the same issues over and over again.
The fact is that the doctrine of res judicata has to apply. The thing, the matter, has been adjudicated upon and it has been appealed unsuccessfully and it has been sought to be further appealed unsuccessfully. The High Court of Australia, as its name implies, is the highest Court of appeal in this country. There is no avenue of appeal beyond the High Court of Australia. Even if there were, it would not be by way of a fresh application to the Federal Magistrates Court.
To my mind, the doctrine of res judicata applies.
For what it is worth, I am satisfied that even if I were wrong on that point, issue estoppel would apply and even if I have overlooked some point in the application - and I do not think that I have - the very practical doctrine of Anshun estoppel would apply. If there was an issue that needed to be reviewed in the Refugee Review Tribunal's decision, it should have been brought to the attention of Driver FM and argued before him. Failing that, it should have been brought to the attention of Hill J and an application should have been made for it to be argued before his Honour. Failing that, there should at least have been a reference to it in the application for special leave to the High Court of Australia. But there is no fresh issue. There are no special circumstances that would justify a fresh application so as to set aside the Anshun principle.
I refer, as I have previously had recourse to do, to a very useful decision by my learned colleague Barnes FM in the recent decision of S1689/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1625. I say it is a recent decision as it was delivered on 4 November 2005, although with the workload of this Court there have been at least 200 decisions delivered in this jurisdiction alone since her Honour handed down that decision.
Whilst her Honour's decision is not entirely on all fours with the decision before me today in that there was an application for summary dismissal of an application to review a decision of the delegate rather than a rehearing of a review of the decision of the Refugee Review Tribunal, a number of the comments made by her Honour relating to general principles are strikingly relevant.
In dealing with the issue of abuse of process, which is an issue squarely before me this afternoon, her Honour said at para.18:
In any event, I am satisfied that these proceedings should be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process. While I bear in mind the limited circumstances in which an abuse of process may be established, in this instance there has been the filing of repeated applications with respect to the same subject matter, albeit not specifically in relation to the decision of the delegate.
In paras.20 and 21 her Honour said:
I have also had regard to the fact that the proceedings may be said to be unjustifiably vexatious and oppressive to the respondent. To allow proceedings of this nature to be continued would bring the administration of justice into disrepute.
(See Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v R (1994) 181 CLR 251 at 255-256; and Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at 323-326) It is appropriate in this instance for the Court to have regard to the underlying public interest that there be finality in litigation. Although the respondent in this instance is not a private party, nonetheless a party should not be vexed over and over in relation to what is in essence the same matter.
Her Honour went on to say at para.21:
Having regard to the applicant's litigation history, I consider it is appropriate to draw the inference that the applicant has filed the present application for the collateral purpose of extending the period of stay in Australia.
To my mind, the paragraphs quoted from her Honour in S1689/2003 (supra) are appropriate to the matter before me today. In my mind, this is an abuse of process. The application has been brought for an ulterior purpose because it relates to an issue which has already been heard and determined and the process of the law has taken its course. It is appropriate for the application to be dismissed with costs. In the case of an abuse of process the Federal Court has made it quite clear in Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 that this is a case where indemnity costs should be awarded rather than costs on a party-party basis.
There are two other matters that I think need to be considered.
The respondent's alternative position was that the application was not competent in that it had been commenced out of time as far as the time limits set out in sub-s.477(1A) of the Migration Act is concerned. Clearly it has. In the case before me it has not been necessary for me to consider that application. I am mindful too of the words of the Honourable Lindgren J in SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 and the late Hely J in SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656 about the utility or otherwise of an application or a notice of objection to competency.
In SZGAP (supra) Lindgren J expressed his agreement with a statement by Hely J in SZBDN (supra). At para.17 of SZBDN his Honour said:
S.477 (1A) is, in the light of s.477 (2), a matter which goes to the jurisdiction of the Federal Magistrates Court. However, given the decision in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, I am unable to perceive what practical benefit is achieved by the filing of a notice of objection if the substantive merits of the appeal have to be determined in order to determine the objection as to competency.
Lindgren J in SZGAP adopted that statement and, with respect to their Honours, acknowledged the fact that not only am I bound by it, I am persuaded by it. It seems to me to be contradictory and of little practical value that one has to go through the entire procedure in determining whether a decision is a privative clause decision in order to decide a notice of objection to competency. If it is a privative clause decision, then s.477 is going to apply anyway and there is little benefit in dealing with the question of competency under sub-s.477 (1A).
There is no necessity for me to decide that issue in this matter in the light of the decisions that I have made. I am of course quite satisfied the decision of the Refugee Review Tribunal is a privative clause decision because the Federal Magistrates Court has already found it to be so and that decision has not been overturned on appeal.
The only other issue, which is a relatively minor one, is that the applicant was able to persuade the registry when filing this application to waive the filing fee of $288.00. I have since found this application to be an abuse of process of the Court. S.15 of the Federal Magistrates Court Act 1999 to my mind gives this Court the authority to deal with abuses of its own process. It is contrary to policy for the Court to waive a filing fee and allow an applicant not to pay for an application which is an abuse of the Court's own process. For this reason I propose to revoke the waiver of the filing fee on the application made on
24 August 2005.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 11 January 2006
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