SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAMM v MINISTER FOR IMMIGRATION [2003] FMCA 377

MIGRATION – Notice of Motion to dismiss application seeking review of decision of Refugee Review Tribunal previously subject of Federal Court review – Abuse of Process.

Judiciary Act (1903)
Migration Act (1958)

Applicant NAOG of 2002 v MIMIA N690 of 2002, 20 September 2002, Emmett J (unreported)
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24

Samson v The Minister for Immigration & Multicultural Affairs [2001] FCA 837

SZADX v The Minister [2003] FMCA 63

R v Balfour; Ex parte Parkes Rural Distributions Pty Limited (1987) 17 FCR 26

South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1

Applicant: SZAMM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 717 of 2003

Delivered on: 2 September 2003

Delivered at: Sydney

Hearing Date: 2 September 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the proceeding be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.

2. That the Applicant pay the Respondents costs set in the amount of $2,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 717 of 2003

SZAMM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is a Notice of Motion filed by the respondent, The Minister for Immigration and Multicultural and Indigenous Affairs, in proceedings which were commenced by the applicant (who was given the pseudonym of SZAMM) on 1 May 2003 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on

   
   

   18 June 2002 refusing to grant him a protection visa. The Notice of Motion was filed on 17 July 2003 seeking orders that the proceedings be dismissed as an abuse of process of the Court, pursuant to Rule 13(10)(c) of the Federal Magistrates Court Rules. It was also submitted that it was within the inherent jurisdiction of the Court to dismiss the proceedings.

2. The Minister filed written submissions and an affidavit sworn on

   
   

   14 July 2003 by Andrew John Crockett, a lawyer employed by the Australian Government Solicitor. 

3. The basis for the motion requires some consideration of past proceedings.  The applicant is a citizen of India who arrived in Australia on 11 September 2000 and lodged an application for a protection visa on 21 September 2000.  That application was refused by a delegate of the Minister on 13 October 2000 and the applicant applied to the Refugee Review Tribunal (the Tribunal) for review on 18 October 2000.

4. The Tribunal handed down its decision on 18 June 2002.  The applicant sought review of that decision by way of an application lodged on

   
   

   11 July 2002 in the New South Wales District Registry of the Federal Court pursuant to section 39B of the Judiciary Act 1903. I have been provided with a copy of that application from which it is apparent that the name of the applicant is that of this applicant, that he was given the pseudonym NAOG pursuant to section 91X of the Migration Act 1958 and that it is an application in relation to the decision of the Tribunal which was handed down on 18 June 2002.  It has not been disputed that that is the only Tribunal decision that has been made in relation to this applicant.

5. On 20 September 2002 Emmett J dismissed the application with costs (see Applicant NAOG of 2002 v MIMIA N690 of 2002, unreported).  On 9 October 2002 a notice of appeal to the Full Court of the Federal Court from the judgment of Emmett J was filed.  Again it is apparent from the notice that it concerns the present applicant.  On 3 December 2002 the applicant filed  a Notice of Discontinuance.  The Notice refers to the same proceedings by number, those being proceedings N1063 of 2002 in the Full Court of the Federal Court. 

6. Subsequently, on 10 December 2002, a writ of summons in the applicant’s name was filed in the Sydney Registry of the High Court of Australia seeking declarations that sections 474 and 486A of the Migration Act were beyond legislative power of the Commonwealth. The respondent has indicated, and I accept, that that matter was stood over by the High Court until the decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 and the consequential orders made by Justice Gaudron on 6 February 2003. The applicant then discontinued the proceedings in the High Court. This is confirmed by and consistent with what appears to be a standard form letter to the applicant from Parish Patience Immigration who were acting for him in connection with his proceedings before the High Court. The applicant tendered this letter in support of his argument that his application to this Court should not be dismissed. It is perhaps understandable in light of that letter that the applicant assumed that he could then take further proceedings because the standard form letter indicated that he may apply to the Federal Court or the High Court (depending on the circumstances of his case).

7. However, on 1 May 2003 the applicant filed an application in this Court seeking review of the same decision of the Tribunal that had been considered by Emmett J.  The file indicates that the applicant was given a fresh pseudonym of SZAMM.  The application is expressed to be in relation to the decision of the Refugee Review Tribunal handed down on 18 June 2002.

8. The application properly states that the basis for this Court's jurisdiction is to be found in sections 483A and 475A of the Migration Act 1958. Section 483A states that, subject to the Act and despite any other law, the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Section 475A provides that 476 is not to affect the jurisdiction of the Federal Magistrates Court or the Federal Court in certain cases.

9. In effect then, the application that is before the Court from Applicant SZAMM, (as I am required to call him under section 91X of the Migration Act) seeks review of the decision of the Tribunal already reviewed by Emmett J. It invokes the same jurisdiction as was exercised by the Federal Court in the prior proceedings.

10. The Minister submitted that the applicant could not seek further review of the decision of the Tribunal as the decision had previously been reviewed by the Federal Court pursuant to jurisdiction that was for all relevant purposes identical to that invoked in the present proceedings and that the further attempt to have the same decision reviewed was an abuse of process.  The solicitor for the Minister referred generally to a decision of Beaumont J in Samson v The Minister for Immigration and Multicultural Affairs [2001] FCA 837 in which His Honour dismissed an application for an extension of time to file a Notice of Appeal where such an application had already been dismissed under another name by Sackville J on the basis that the application was an abuse of process. Reference was also made to a decision of Federal Magistrate Driver in SZADX v The Minister [2003] FMCA 63. In that case an application for review of a Tribunal decision was dismissed in accordance with the principles of res judicata and/or estoppel in a situation where there had been a decision of the Federal Court followed by an unsuccessful appeal to the Full Court in relation to the same Tribunal decision.

11. In that case Federal Magistrate Driver stated that (obviously) the applicant had no right to appeal to this Court from a decision of the Full Court of the Federal Court.  It is similarly obvious that the applicant has no right to appeal to this Court from a decision of a single judge of the Federal Court.  Further, it is apparent from an examination of the reasons for decision of Emmett J that the decision would be unaffected by the decision in Plaintiff S157, as His Honour took the view that even in the absence of section 474 the Tribunal would have been entitled to deal with the applicant’s claims as it did. If the applicant took issue with that decision either on the basis of the law as it stood then or subsequently, his remedy was an appeal to the Full Court of the Federal Court. He had filed a Notice of Appeal but he discontinued those proceedings in December 2002. There is nothing before this Court to indicate whether he has commenced any further proceedings in the High Court.

12. In these circumstances it is apparent that the issue of whether there was a reviewable error in the Tribunal decision has been dealt with by the Federal Court.  It should not be re-litigated in this Court.

13. The Court may, in an appropriate case, prevent a party from re-litigating issues which have been decided against that party or decided involving that party in other proceedings whether or not such litigation is precluded by the rules relating to estoppel by judgment, as an abuse of process.  However the principles relating to res judicata and issue estoppel are of assistance in determining whether or not the subsequent action is an abuse of process (see Wilcox J in R v Balfour; Ex parte Parkes Rural Distributions Pty Limited (1987) 17 FCR 26 in which it was suggested that the principles of estoppel could be applied to preclude the bringing of an action, which if it succeeded, would result in a judgment which conflicted with an earlier judgment and also see generally in relation to abuse of process in such a context South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1).

14. In this case I am satisfied that it is an abuse of process for the applicant to proceed with these proceedings where the matter has been litigated and relevant issues decided in the Federal Court pursuant to jurisdiction the same as that involved in the present proceedings.  This is not a case where there is more than one decision of the Refugee Review Tribunal.  It is clear that the decision handed down on 18 June 2002 is the only decision of the Tribunal relevant to these proceedings and that it was the subject of the decision of Emmett J.

15. In concluding that the Court should dismiss these proceedings, I take into account the fact that the power to dismiss proceedings for abuse of process is an exceptional power which ought to be sparingly exercised.  However I consider that in this case, as the Federal Court has already determined the application of the applicant in relation to review of the decision of the Refugee Review Tribunal, it is appropriate that the application to this Court should be dismissed.

16. In all the circumstances of this case I consider it appropriate that costs should follow the event.  The Minister seeks the sum of $2,000 including disbursements.  I consider that this is an appropriate amount in light of the necessary preparation and representation today.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:  Brown S

Date:  2 September 2003