SZARA v Minister for Immigration
[2005] FMCA 1507
•4 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZARA v MINISTER FOR IMMIGRATION | [2005] FMCA 1507 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – Tribunal decision previously reviewed by Federal Magistrates Court, Federal Court, High Court of Australia – no jurisdictional error found by those Courts – conclusive outcome that Tribunal decision is privative clause decision – application for judicial review dismissed as incompetent. |
Federal Magistrates Act 1999 (Cth), ss.14, 15
Migration Act 1958 (Cth), s.91X, 477(1A)
Judiciary Act 1903 (Cth), s.39B
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | SZARA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1853 of 2005 |
| Delivered on: | 4 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms S Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The respondent’s Notice of Motion filed on 9 August 2005 is upheld.
The application for judicial review filed on 14 July 2005 is dismissed as incompetent.
The Court directs that no further application for review of the decision of the Refugee Review Tribunal handed down on 8 May 2003 reference N01/37518 or for review of the decision of the delegate of the respondent dated 13 February 2001 or for the review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application fixed in the amount of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1853 of 2005
| SZARA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 9 August 2005, the respondent seeks an order to dismiss the substantive application filed in the Federal Magistrates Court on 14 July 2005 due to jurisdiction conferred by ss.14 and 15 of the Federal Magistrates Act 1999 (Cth). The respondent seeks:
An order that the application be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules because the proceedings are an abuse of process.
Further, or in the alternative, an order that the application be dismissed on the basis of res judicata and/or Anshun estoppel.
Further, or in the alternative, an order that the application be dismissed as disclosing no reasonable cause of action.
Further, or in the alternative, the application be dismissed as incompetent.
Also filed by the respondent on 9 August 2005 was a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this application under the Migration Act 1958 (Cth) (“the Act”) on the grounds that:
1.On 8 May 2003 the applicant was notified of a decision of the Refugee Review Tribunal (“the Decision”) pursuant to sections 430B(6), 430C(2), 441A, 441C and 441G of the Act.
2.On 26 May 2003 the applicant applied to the Federal Magistrates Court for review of the Decision. On 1 April 2004 her Honour Federal Magistrate Barnes dismissed the applicant’s application (“Barnes FM’s judgment”).
3.On 15 April 2004 the applicant filed a Notice of Appeal from the whole of Barnes FM’s judgment (“Notice of Appeal”). On 1 June 2004 his Honour Justice Emmett of the Federal Court dismissed the Notice of Appeal.
4.On 14 July 2005 the applicant applied to the Federal Magistrates Court of Australia for review of the Decision.
5.The Decision is a privative clause decision under section 474(2) of the Act.
6.Under section 477(1A) of the Act an application to the Court for review of a privative clause decision must be made within 28 days of the notification of the decision.
7.The applicant has failed to make an application within the required 28 days of being notified of the Decision.
For the purpose of the application and the Notice of Objection to Competency, the respondent tendered and applied for an affidavit of Sharon Anne Burnett sworn on 8 August 2005 to be admitted into evidence.
In response to the application and the Notice of Objection to Competency, the applicant filed an affidavit sworn on 15 September 2005 to be admitted into evidence.
The applicant in these proceedings is not to be to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZARA”.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 19 October 2000. On 16 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 13 February 2001 the delegate refused to grant a protection visa and on 13 March 2001 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant is a married man from Jessore in Bangladesh. He completed his schooling in 1985 and, according to evidence given at the Tribunal hearing, worked in his father’s jute business following his formal schooling. The applicant claims he is at risk of persecution in Bangladesh for reasons of his political opinion as a result of his involvement with the Bangladeshi Freedom Party. The Bangladeshi National Party (BNP) is currently in power and the largest opposition group is the Awami League, which was in government from June 1996 to 2001. There are a large number of smaller political parties in Bangladesh. The Bangladeshi Freedom Party was founded in August 1987 by Lt Colonel Sayeed Farook Rahman and Lt Colonel Khanadakar Abdur Rashid, two of the participants in a 1975 coup staged by pro-Pakistan, Islamic right wing army officers which resulted in the death of Bangladesh’s first Prime Minister, Sheikh Mujibur Rahman and most of his family. Removed from power in a counter coup in November 1975, the coup leaders went into exile in Libya but some later returned after being granted indemnity from prosecution and formed the Freedom Party, a right wing Islamic organisation. In 1996 the Freedom Party contested about 10% of seats but did not win any (Tribunal decision pp.4-5).
Litigation history
The outline of submissions prepared by Ms Burnett, appearing for the respondent, contained a convenient summary of the litigation history of the applicant which I have adopted and reproduced as follows:
On 16 November 2000 the applicant lodged an application for a protection visa.
On 13 February 2001 the delegate of the Minister refused to grant the protection visa.
On 13 March 2001 the applicant applied to the Tribunal for review of the delegate’s decision.
On 22 April 2003 the Tribunal handed down its decision affirming the delegate’s decision.
On 26 May 2003 the applicant filed an application for review of the Tribunal’s decision with the Federal Magistrates Court of Australia.
On 1 April 2004 her honour Federal Magistrate Barnes dismissed the application having found that no jurisdictional error attended the Tribunal’s decision.
On 15 April 2004 the applicant filed a Notice of Appeal in the Federal Court of Australia.
On 1 June 2004 his Honour Justice Emmett dismissed the appeal to the Federal Court.
On 29 June 2004 the applicant applied for special leave to appeal in the High Court of Australia.
On 16 June 2005 the application for special leave to appeal was dismissed with costs.
On 14 July 2005 the applicant filed an application for review of the Tribunal’s decision in the Federal Magistrates Court of Australia.
Respondent’s application
Ms S Burnett, Solicitor appearing for the respondent, indicated the respondent would rely on the outline of submissions filed on 9 August 2005. In respect of those submissions I have adopted paragraphs 1-17 for the purpose of this judgment:
The respondent submits that these proceedings are an abuse of process.
Rule 13.10 of the Federal Magistrates Court Rules (the Rules) provides:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
…
(c)the proceeding or claim for relief is an abuse of process of the Court.”
In Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306, his Honour Justice Wilcox found that even if res judicata did not apply (having found that it did) (at [18]-[19]):
“… it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 …”
The respondent contends that the Court should find this application to be an abuse of process for the following reasons:
(a)the applicant is attempting to re-litigate in relation to the same Tribunal decision that was previously found to be a private clause decision by the Federal Magistrates Court and the Federal Court: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579; A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 and Walton v Gardiner (1993) 177 CLR 378;
(b)the applicant seeks to agitate again the grounds of review which were raised in his applications to the Federal Magistrates Court, the Federal Court and the High Court of Australia. No jurisdictional error was found by his Honour Justice Emmett who found that “It is quite apparent that none of those grounds [referring to the applicant’s grounds of appeal] has any substance in the light of the careful and detailed reasons of the Federal Magistrate; and
(c)there is, for the reasons stated below, no arguable basis for any of the grounds of review raised: SZBJM v MIMIA [2004] FCA 404 at [30].
Accordingly, the respondent submits that this proceeding should be dismissed as it is an abuse of process.
It is well established that res judicata applies where an application seeks to re-litigate the same claims for relief raised in earlier proceedings and that res judicata and Anshun estoppel apply to judicial review of administrative actions: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589, 612-613. It is now established res judicata and Anshun estoppel can apply to judicial review of administrative decisions: Wong v MIMIA [2004] FCAFC 242 ALR 722. According to Merkel J in Somanader v MIMA (2000) 178 ALR 677, the identity of the claims for relief or causes of action in question:
“… is to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded” (at [53]).
Anshun estoppel applies to prevent the applicant from raising a ground of review if it is unreasonable for the applicant not to have raised it previously (and if no special circumstances exist): Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. Developments in case law will not be sufficient to bring a matter within the special circumstances exception: A210 v MIMIA [2004] FCA 579.
In this proceeding, the grounds of review raised are in substance those grounds pleaded by the applicant without success in the application to the Federal Magistrates Court, the notice of Appeal to the Federal Court and the application for special leave to appeal in the High Court.
The respondent submits that the ground sought to be raised in the amended application are Anshun estoppel.
Further, or in the alternative, the respondent submits that there is no reasonable basis to the application.
Rule 13.10(a) of the Rules provide that the Court may, inter alia, order that a proceeding be dismissed generally if it appears that “no reasonable cause of action is disclosed in relation to the proceedings”. Pursuant to Rule 1.05 of the Rules and Order 54B Rule 5 of the Federal Court Rules, the words “no reasonable cause of action” must be construed to mean that “no reasonable basis for the application is disclosed”.
No reasonable basis for an application will be disclosed where:
(a)the case of the applicant is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236; SZBWF v Minister for Immigration [2004] FMCA 83 (2 March 2004); SDAE v MIMIA [2003] FCA 959;
(b)it is apparent that the application must fail if the case were to go to trial in the ordinary way: Webster v Lampard (1993) 177 CLR 598; Xie v Immigration Department [1999] FCA 365; SZBWF v Minister for Immigration [2004] FMCA 83 (2 March 2004); Applicant A175/2002 v MIMIA [2003] FCA 829;
(c)one can say without doubt, on the whole of the material, that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Miller v Wertheim & Anor [2001] FMCA 103; Kosi v MIMIA [2003] FMCA 340.
The respondent submits the application should be dismissed because no reasonable basis has been disclosed.
The application contains unparticularised grounds of review. The applicant has not identified how he was denied natural justice, a ground previously raised in the Federal Magistrates Court, the Federal Court and the High Court. Nor has he provided evidence or any other material in support of his allegation that the Tribunal acted in bad faith. In essence, the Tribunal rejected the applicant’s claims because it did not find the applicant to be a truthful or a credible witness. To the extent the applicant appears to be requesting that this Court undertake a merits review, this Court has no jurisdiction to undertake such a review: A v MIMIA (2002) FCA 1049.
The respondent submits that the applicant’s application is incompetent because it was filed more than 28 days after the applicant was notified of the Tribunal decision and seeks to review a privative clause decision: SZBML v MIMIA [2004] FCA 1195.
The applicant was notified of the decision of the Tribunal on 8 May 2003. The applicant filed this application over 2 years from notification of the Tribunal’s decision. The Tribunal’s decision, the subject of the current proceedings, has been found to be a privative clause decision by the Federal Magistrates Court and Federal Court.
Accordingly, the respondent relies upon the Notice of Objection to Competency filed 9 August 2005 and submits that this Court should refuse to entertain the application as it is incompetent.
Applicant’s submissions
The applicant was a self represented litigant who appeared with the assistance of a Bengali interpreter. The applicant had prepared an affidavit but had not prepared any written submissions in respect of the respondent’s Notice of Motion or the Objection to Competency. The purpose of the hearing before the Court was explained to the applicant. Unfortunately, the applicant had little understanding of the proceedings before the Court nor the nature of seeking judicial review of the Tribunal’s decision. The applicant attempted to have further time allocated in order to prepare his case and obtain further documentation in support of his application. The applicant declined to make any oral submissions in respect of his pleadings.
Reasons
I am persuaded by Ms Burnett’s argument and written submissions in respect of abuse of process, res judicata, Anshun estoppel and that there is no reasonable basis for the application. However, I believe that I am obliged to follow the reasoning as noted below in the line of authority referred to in the decision of SZBML.
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of the notification of the relevant Tribunal decision. The application was filed on 14 July 2005 seeking a review of the Tribunal’s decision made on 8 May 2003, which is a period of approximately 14 months. In the interim period, the decision of the Tribunal had been considered by the Federal Magistrates Court, the Federal Court and the High Court. On 1 April 2004 her Honour Federal Magistrate Barnes dismissed the application finding that no reviewable error by the Tribunal had been demonstrated: [2004] FMCA 249. On 1 June 2004 his Honour Justice Emmett dismissed the appeal to the Federal Court seeking review of the decision of Federal Magistrate Barnes: [2004] FCA 1778. On 16 June 2005 the applicant’s application for special leave to appeal to the High Court was dismissed by their Honours Chief Justice Gleeson and Justice Gummow.
The applicant has not been able to show any reason why this Court should not be bound by those decisions, such that the time limit under s.477(1A) should not apply. I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J.
Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on an assertion of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether the decision of the Tribunal is a privative clause decision for the purpose of any of the proceedings in this Court and that issue has been conclusively determined by previous proceedings and affirmed on appeal to the Federal Court, this Court is bound by the decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld by the appeal of SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached its conclusion, as set out in the decision, and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Conclusion
The application filed on 14 July 2005 relates to a privative clause decision and has not been has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The respondent’s Objection to Competency is upheld and the applicant’s substantive proceedings should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant mother pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 14 October 2005
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