SZAUV v Minister for Immigration

[2005] FMCA 1840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUV & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1840

MIGRATION - visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicants are citizens of  Bangladesh – husband, wife and two children.  

PRACTICE & PROCEDURE – Notice of Objection to Competency – privative clause decision – where application filed more than 28 days after the Applicant was notified of the decision.

Notice of Motion – res judicata – issue estoppel – Anshun estoppel – abuse of process – where application previously heard and dismissed by Federal Magistrates Court – where appeal previously dismissed by Federal Court – where application for special leave to appeal dismissed by High Court of Australia – inability to afford legal advice does not constitute special circumstances to allow an applicant to argue a ground that had not been argued in earlier proceedings.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.474, 477(1A)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZAUV v Minister for Immigration [2004] FMCA 647
SZAUV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1745
SZAUV & Ors v MIMIA [2005] HCA Trans 710
Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722.

First Applicant: SZAUV

Second Applicant: SZAUW

Third Applicant: SZAUX

Fourth Applicant: SZAUY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 2819 of 2005

Delivered on: 9 December 2005

Delivered at: Sydney

Hearing dates:  1 and 7 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Zipser

Solicitor for the Respondent: Mr Kettle

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Leave granted to join the Refugee Review Tribunal as a party to the proceedings.

2. Refugee Review Tribunal is joined as Second Respondent to the application.

3. That the First Respondent’s Notice of Motion is upheld.

4. That the Application filed on 4 October 2005 is summarily dismissed under the provisions of Rule 13.10 (c) as an abuse of the process of the court.

5. In the alternative, the Application is dismissed on the grounds that:

   (a)the doctrine of res judicata applies;

   (b)the doctrine of issue estoppel applies; and

   (c)Anshun estoppel applies.

6. The Application is not competent.

7. No further application by the Applicants or any of them to review the decision of the delegate of the Respondent Minister made on 13 June 2002 or the decision of the Refugee Review Tribunal made on 28 May 2003 may be accepted for filing without leave of the Court.

8. That the Applicants or any of them may not institute any proceeding to review the decision of the delegate of the Respondent Minister made on 13 June 2002 or the decision of the Refugee Review Tribunal made on 28 May 2003 without leave of the Court.

9. That the First, Second and Fourth Applicants pay the First Respondent’s costs in the sum of $3,900.00.   

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2819 of 2005

SZAUV

First Applicant

SZAUW

Second Applicant

SZAUX

Third Applicant

SZAUY

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 28^th May 2003.

2. The Respondent Minister has filed a Notice of Motion seeking that the application for judicial review filed on 4^th October 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 is a complete bar to the application.

   d)The proceedings are an abuse of process.

3. They also seek costs on an indemnity basis and an order that no further application by the Applicants to review the decision of the Refugee Review Tribunal dated 28^th May 2003 be accepted for filing without leave of the Court.

4. In addition, the solicitors for the Respondent Minister have filed a Notice of Objection to Competency, claiming that the Court has no jurisdiction to review the decision made by the Refugee Review Tribunal on 28^th May 2003 as sub-s 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 and s.483A of the Migration Act must be made within 28 days of the notification of the Tribunal decision.

5. The Applicants filed their application on 4^th October 2005, which is quite clearly more than 28 days after the notification on 28^th May 2003. The Applicants, with the aid of their counsel, Mr Zipser, have now filed an Amended Application. In that Amended Application, they seek to argue this ground:

   The Applicant, who was a businessman in Bangladesh, claimed that he was the victim of extortion. The Tribunal did not reject the Applicant’s claim that he was the victim of extortion, but held that “if he did pay extortion [it was not] because of his political affiliation” (CB 187.7). However, the Tribunal failed to consider whether the extortion was for reason of membership of a particular social group: see for example SVRB v MIMIA [2004] FCA 1176 and SZEEX v MIMIA [2005] FMCA 359. On this basis, the Tribunal failed to consider an aspect of the Applicant’s claims and fell into jurisdictional error.

The Notice of Motion

1. In support of the Notice of Motion, the Respondent Minister has filed an affidavit by John Stuart Kettle, solicitor, sworn on 12^th October 2005. The material contained in Mr Kettle’s affidavit has been admitted without objection, and it essentially sets out the Applicants’ relevant litigation history, none of which was disclosed by the Applicants in their original application.

2. The Applicants originally commenced proceedings in this Court on 23^rd June 2003, seeking a review of the Refugee Review Tribunal’s decision. That application was heard and dismissed by Baumann FM on 10^th September 2004.

3. The Applicants appealed on 30^th September 2004. On 1^st December 2004, Conti J in the Federal Court heard and dismissed the appeal.

4. The Applicants then sought special leave to appeal to the High Court of Australia on 23^rd December 2004. On 8^th September 2005 Hayne and Callinan JJ dismissed the application for special leave to appeal.

5. The Applicants then filed this application on 4^th October 2005.

Jurisdictional error

1. Counsel for the Applicants, Mr Zipser, agrees that if there is no jurisdictional error then the Application should be dismissed because it was filed outside a mandatory statutory time limit. However, he contends that there is a jurisdictional error in the Tribunal’s decision.

2. In reply to the Respondents’ contentions that the doctrines of res judicata and issue estoppel apply, Mr Zipser submits that these doctrines were recently considered by Lindgren J in Wong v MIMIA (2004) 204 ALR 722, who held that res judicata and issue estoppel operated to prevent an applicant from re-arguing grounds or sub-grounds that had been determined in an earlier proceeding, but did not operate to prevent an applicant from arguing grounds that had not been determined earlier. The ground he wishes to argue is that the Tribunal failed to consider his claim that he suffered from extortion because of his membership of a particular social group.

Special circumstances

1. In respect of Anshun estoppel, he submitted that there are special circumstances justifying the Applicant being permitted to raise in these proceedings grounds which he could have raised, but did not raise, in the earlier proceedings. Those special circumstances that he claims are that he could not afford legal representation in the earlier proceedings.

2. In support of this claim, the Applicant has affirmed an affidavit in which he claimed that even though he has had permission to work in Australia and has worked, his earnings have gone towards providing food and accommodation for his family and educating his children.

3. The Applicant asked for an adjournment of the proceedings before Baumann FM on 10^th September 2004. In his affidavit, he said at [7]:

   When my matter was before the Federal Magistrates Court in 2004 I told the court that I could not afford to pay for a lawyer.

   
   

   I told the court that, if my matter was adjourned, I could try to arrange money from Bangladesh or somewhere else to pay for a lawyer. However, the court did not adjourn my matter.

4. In oral evidence, the Applicant told the court that he asked Baumann FM for an adjournment of two months and that, when he appeared for himself before Conti J, he asked for an adjournment of a minimum of a month. I note that his honour refers to this application for adjournment in his decision (SZAUV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1745) at [4]:

   The appellants however asked for an adjournment of one month in order to brief counsel which was opposed by the respondent. There was no suggestion on the first appellant’s part, who spoke on behalf of the appellants, that he had retained counsel. The appellants had not been represented before the Tribunal and the Federal Magistrate. Nor was there any suggestion of a specific matter which would seek to raise on the appeal.

5. It has always been the case that the applicants say that they have assets in Bangladesh to the value of approximately $A 2,000,000.00. I asked the First Applicant why he had not sought to bring some of those funds to Australia. He said “It takes time to get money from Bangladesh to Australia. I was trying to make arrangements.”

Conclusions

1. I am not satisfied that inability to obtain legal representation constitutes special circumstances that should entitle the Applicants to raise arguments that they could have raised in the earlier proceedings but did not do so. It is well known that most applicants, indeed the vast bulk of applicants, for judicial review of the Refugee Review Tribunal’s decision to affirm a decision of a delegate of the Minister to refuse a protection visa are not legally represented. That is why there is a scheme in existence to allow applicants in such a position to obtain free legal advice from a lawyer on a panel that has been set up for that purpose.

2. The Applicant stated in his affidavit that he had taken advantage of that scheme and had obtained advice, but was not satisfied with the advice that he received from the solicitor whom he saw.

3. Even if it were the case that inability to afford legal representation did constitute “special circumstances”, in my view, the Applicants’ delay in making arrangements to obtain legal advice would, to my mind, disentitle them to relief.

4. It is clear from the First Applicant’s own evidence that he had made no arrangements and no attempts to bring funds over from Bangladesh when he asked Baumann FM for an adjournment for that purpose on 10^th September 2004. The Applicants’ own original application, filed on 23^rd June 2003, says that the Applicants were notified of the Tribunal decision on 28^th May 2003. The Application’s First Court Date was 14^th August 2003, and the Final Hearing date was not until 10^th September 2004.

5. Even so, when the Applicants went to court on 10^th September 2004, the First Applicant said that he asked for an adjournment for two months so that, as he deposed, he could “try to arrange money from Bangladesh or somewhere else to pay for a lawyer.”[1] 

   [1] Affidavit of First Applicant dated 1 December 2005, paragraph 7.

6. Quite clearly, the First Applicant had made no efforts at all to bring any of the two million dollars’ worth of assets to Australia, even though he had fifteen months in which to do so. There is no evidence that he had even seen a lawyer, other than the panel lawyer.

7. The appeal against that decision was filed on 30^th September 2004. The appeal was not heard until 1^st December 2004. Two months had elapsed, but the Applicants seemed to be no closer to their goal of bringing funds over from Bangladesh to pay for their legal advice, and, as Conti J noted, there was no suggestion that the Applicants had done anything to retain counsel.

8. The Applicants then decided to seek special leave to appeal to the High Court of Australia. Not even this proceeding seemed to do anything to prompt the Applicants to obtain legal advice. It was not until after the High Court dismissed the Applicants’ application for special leave to appeal that they did anything to obtain legal advice.

9. It is not disputed that the Applicants’ counsel, Mr Zipser, was briefed on 1^st November 2005. This was, of course, after the solicitors for the First Respondent Minister had filed their Notice of Motion seeking summary dismissal on 13^th October 2005.

10. I am not satisfied that the First Applicant was a truthful witness. I am not satisfied that the Applicants had made any attempt to obtain any legal representation or had made any attempt to bring any of their assets out to Australia when they made adjournment applications to the Federal Magistrates Court in September 2004 or the Federal Court in December 2004.

11. The Applicants were not legally represented when they filed their application in the proceedings before me on 4^th October 2005. There is no mention in that application of the grounds that appeared in their Amended Application filed in court on 1^st December 2005.

12. Even more telling is the fact that the application filed on 4^th October 2005 contains no reference to any of the previous proceedings before Baumann FM, Conti J or the High Court.

13. I am satisfied that the proceeding filed by the Applicants is an abuse of the process of this Court. It has, to my mind, been filed for the purpose of prolonging the Applicants’ stay in Australia. Because of my findings on the legal representation issue, it appears to me to be unnecessary to make any finding on the claim that the alleged extortion was for reason of the Applicants’ membership of a particular social group. If that ground was to be argued, the Applicants had the opportunity to argue it before.

14. I am satisfied that the proceeding is a vexatious proceeding and it should be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  12 December 2005