SZAWW v Minister for Immigration

[2003] FMCA 479

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWW & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 479

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas.

PRACTICE AND PROCEDURE – Standing of applicants – whether the RRT should have been a respondent – dismissal of application as an abuse of process – previous applications to review the same RRT decision commenced in the Federal Court and the High Court – whether the raising of additional grounds makes any difference.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Jurisdiction of the Federal Magistrates Service Leglislation (Amendment) Act 2001 (Cth), Part 2
Migration Act 1958 (Cth), ss.477(1A), 478, 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch 1

Abidin v Minister for Immigration (2002) 116 FCR 237 (FC)

Hong v Minister for Immigration (1998) 82 FCR 468 (FC)
Walton v Gardiner (1992-93) CLR 378

First Applicant:

Second Applicant:
Third Applicant:

SZAWW

SZAWX
SZAWY

Respondent: MINISTER FOR IMMIGRATION  & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1205 of 2003

Delivered on: 21 November 2003

Delivered at: Sydney

Hearing dates: 11 September and 20 October 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1205 of 2003

SZAWW, SZAWX, SZAWY

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The principal application is made in this Court under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) to review a decision of the Refugee Review Tribunal (“the RRT”) made on 8 May 1995 and handed down on or about 11 May 1995, affirming a decision of the delegate of the respondent not to grant the applicants protection visas. The applicants claim prerogative relief. The application filed on 30 June 2003 raised a single issue of procedural fairness concerning the failure to notify the applicants of adverse country information. However, by affidavit filed on 10 September 2003 by the solicitor for the applicants, the applicants present a draft amended application raising other procedural fairness grounds as well as a ground of failure to take relevant consideration into account, a failure to ask a material question, misapplication of the applicable law and a constructive failure to exercise jurisdiction.

2. The third applicant appears not to be a person having standing in the application as he was not a party to the decision of the RRT.  The first and second applicants were parties and the relevant claims were made by the first applicant.

3. The second respondent, the Refugee Review Tribunal, is not a respondent to the principal application by operation of s.479 of the Migration Act. There is no other fact or circumstance that would make the RRT a necessary party.

4. On 27 August 2003 a notice of objection to competency was filed on behalf of the Minister. The notice asserted that the application to this Court was not made within the time limit prescribed for applications under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). In the light of argument presented and issues raised by me on 11 September 2003 I permitted the respondent to file written submissions on competency and those submissions were filed on 1 October 2003. Those submissions are as follows:

   These submissions address the issue raised during the hearing on 11 September 2003 of the competency of the application.

   The applicants were refused protection visas by the RRT on 8 May 1995, sought review of the RRT’s decision by the Federal Court on 15 June 1995 (“the first application”) and consented to the dismissal of the first application on 18 March 1996.  The applicants again sought review of the RRT’s decision on 30 June 2003 by the current application filed in the Federal Magistrates Court on 30 June 2003.

   Given these facts, the Migration Legislation Amendment (Judicial Review) Act 2001 (No 134 of 2001), Schedule 1, item 8(2)(b) (conveniently reproduced at p 574 of Reprint 8 of the Migration Act) applies. The first application was plainly “lodged” within item 8(2)(b)(ii) when it was filed in the Federal Court Registry on 16 June 1995: Hong v Minister for Immigration (1998) 82 FCR 468 (FC) at 471; Abidin v Minister for Immigration (2002) 116 FCR 237 (FC) at [7-12], and was an application for judicial review within the definition in item 8(3) of Schedule 1. Item 8(2)(b) has the effect that the current version of Part 8 of the Migration Act (including s.477(1A)) does not apply to the application. Thus the RRT’s decision is not a “privative clause decision”. This is consistent with the position taken by the respondent in the remittal of matters in the Muin class action from the High Court, where it has been accepted by the respondent that the remitted matters are not “privative clause decisions” because item 8(2)(b) applies to them.

   However, the former version of Part 8 of the Migration Act as in force at 15 June 1995 also does not apply to this application, as it has been repealed. It is accepted that the time limits in s.478 of the Act as at 15 June 1995 cannot be said to be a “liability” within s.8 of the Acts Interpretation Act 1901 (Cth) so as to be preserved despite the repeal.

   The result is that neither the new nor the old Part 8 apply to these proceedings. In particular neither s.478 of the old Part 8, nor s 477(1A) of the new Part 8 apply, and there are no other relevant time limitations preventing the Application being brought. Nor is it contended that the Court otherwise lacks jurisdiction to determine the application. Accordingly the notice of objection to competency is not pressed and no amended notice will be filed.

5. By notice of motion filed on 29 August 2003 the Minister seeks the summary dismissal of the principal application pursuant to rules 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

6. An issue of jurisdiction was also raised by Mr Karp, for the applicants, as a friend of the Court. The issue is whether the Court has any jurisdiction under the Migration Act to review a decision that is not a “privative clause” decision. The issue arises from the language of item 18, Part 2 of schedule 3 to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) (“Jurisdiction of the Federal Magistrates Service Legislation Amendment Act”), when read with s.477 of the Migration Act. The proposition is that the Court’s jurisdiction might be limited to the review of privative clause decisions, not decisions which are not privative clause decisions.

7. I ruled that I had jurisdiction in either case. This is on the basis that the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a “matter” arising under the Migration Act: s.483A. The original jurisdiction of the Federal Court includes jurisdiction in respect to any “matter” in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth: s.39B of the Judiciary Act. Accordingly, the jurisdiction of this Court is in relation to the same “matter”. This Court’s jurisdiction, like the Federal Court’s jurisdiction, is in relation to matters arising under the Migration Act, not decisions made under the Migration Act. It makes no difference whether the decision being reviewed is or is not a privative clause decision. A “matter” is an inter partes dispute. Generally, the dispute in migration proceedings will be whether or not the decision subject to challenge is a privative clause decision. This Court, like the Federal Court, has jurisdiction to deal with that “matter”. To the extent that the particular item of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act has any impact, that impact appears to be limited to the commencement date of the jurisdiction in respect of privative clause decisions to which s.477 applies. I do not rule out the possibility that the commencement date of the Court’s jurisdiction could be different in the case of a decision to which s.477 of the Migration Act does not apply, pursuant to s.2 of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act.

8. The Minister proceeds on the basis of affidavits by Althea Houlton of 4 September 2003, 12 September 2003 and 20 October 2003.  The Minister also relies upon an affidavit by Jennifer Bautista of 3 September 2003.

Reasoning

1. The evidence establishes that three proceedings have been instituted to review the decision of the RRT. The proceedings in this Court are the third proceedings filed seeking a review of the decision of the RRT. The first was proceeding number G243 of 1995 instituted in the Federal Court. That application was dismissed by consent on 2 April 1996. The second proceeding was proceeding number S89 of 1999 instituted in the High Court. The first and second applicants were parties to a class action. The class action was dismissed but the first and second applicants, along with a large number of other applicants to the class action, were given leave to file individual applications in the High Court up to 20 June 2003. They did not do so.

2. Mr Reilly submits that the principal application should be summarily dismissed on the basis of res judicata, issue estoppel or abuse of process.  It is unnecessary to deal with the issues of res judicata or issue estoppel.  It is sufficient to deal with the matter on the basis of abuse of process.  There is a dispute between the parties as to whether the proceedings now being instituted are the same or substantially the same as the proceedings that were instituted in the Federal Court and the High Court.  There are certainly common issues but the draft amended application in this Court raises new issues. 

3. The question is whether it would be an abuse of process for the applicants to be permitted to pursue that expanded or any application in respect of the same RRT decision.  The proceedings in the Federal Court in 1995 and 1996 were pursued on a restricted basis, noting the limited grounds of review that were then available.  The law has since changed and more grounds of review are now available.  It does not follow, however, that an applicant should be permitted to wait seven years to take advantage of a change in the law to reactivate proceedings which had earlier been abandoned.  In addition, the applicants had the opportunity to institute proceedings in the High Court as late as 20 June 2003.  At that time, the grounds of review available were no more restricted than the grounds of review available in this Court.  The applicants did not take that opportunity.  The time for that opportunity now having expired, the applicants seek to take an opportunity to pursue proceedings in this Court. 

4. In my view, it would be an abuse of the Court’s process to permit the applicants to do so.  In Walton v Gardiner (1992-93) CLR 378 at 393 the High Court said:

   …proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings… The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

5. In my view, that principle applies in this instance, notwithstanding that this Court is not a superior court.  The applicants should not be permitted to take advantage of an extended period of delay in order to agitate proceedings in this Court that they have had a fair opportunity to agitate both in the Federal Court and in the High Court.  It would, in my view, bring the administration of justice into disrepute to permit a third attempt to agitate a challenge to a particular decision of the RRT, after earlier proceedings had been disposed of by order, or by effluxion of time.  It would be unfair to the Minister to permit such multiple applications.

6. I dismiss the application pursuant to rule 13.10(c) of the Federal Magistrates Court Rules. I will order that the applicants pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 November 2003