SZAXY v Minister for Immigration
[2006] FMCA 104
•30 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAXY v MINISTER FOR IMMIGRATION | [2006] FMCA 104 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – prior proceedings. |
| Migration Act 1958, s.424A |
| SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 743 SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 76 SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA trans 410 by Gleeson CJ and Gummow J, 16 June 2005 NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 NAHV v Ministerfor Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Applicants M16 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 Walton v Gardiner (1993) 177 CLR 378 Somander v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677 Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 |
| Applicant: | SZAXY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2525 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 30 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2006 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application be dismissed:
(a)because the proceeding is barred by the principles of res judicata or Anshun estoppel, or in the alternative;
(b)because the proceedings are an abuse of the Court's process.
That the applicant pay the first respondent's cost of this motion and the proceedings in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2525 of 2005
| SZAXY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of notice of motion filed on 24 October 2005 by the first respondent seeking that an application filed by the applicant on 8 September 2005 seeking review of a decision of the Refugee Review Tribunal be dismissed on alternative bases, either because the proceedings are an abuse of process or barred by the principles of res judicata, issue estoppel or Anshun estoppel.
The applicant was not present when the matter was first called nor has he appeared now, some 20 minutes later. The first respondent sought that the Court proceed with the hearing in the absence of the applicant pursuant to Rule 13.03A(d). I consider that in the particular circumstances of the case it is appropriate to do so. On 11 October 2005 h the applicant attended a directions hearing indicating that the first respondent intended to file a notice of motion, which, when filed, notified the date of the hearing as 18 January 2006. The applicant was notified by letter from the Court dated 23 December 2005 sent to the address notified by him of the change to today's date.
I was informed from the bar table that the first respondent successfully served by courier a copy of the first respondent's outline of submissions on 21 January 2006. There is nothing to suggest that there has been any contact by the applicant with the Court (as might have been expected had he appeared on 18 January 2006).
Turning then to the substance of these proceedings, the relevant background to this application is that the applicant arrived in Australia in 2001 and applied for a protection visa. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. On 12 June 2003 the Tribunal affirmed the decision of the delegate refusing the protection visa application. On 14 July 2003 the applicant commenced proceedings in the Federal Magistrates Court. On 18 October 2004 those proceedings were dismissed by me in the matter reported as SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 743.
In the course of my judgment I indicated that I had considered not only the unparticularised grounds in the application but also all of the material before me in determining whether any jurisdictional error was apparent and that no jurisdictional error was apparent. The application was dismissed. The applicant appealed to the Federal Court and in a decision reported as [2005] FCA 76 Wilcox J dismissed the appeal. In the course of his judgment his Honour indicated at [17] that, anticipating that the appellant would not be legally represented before him, in advance of the hearing he had read the Tribunal's reasons for decision and saw no basis upon which it may fairly be claimed that the Tribunal fell into jurisdictional error.
Subsequently the applicant made an application for special leave to appeal to the High Court: see SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA trans 410 by Gleeson CJ and Gummow J on 16 June 2005. Gleeson CJ stated that the applicant's written case raised no arguable grounds for the grant of special leave and that there were no prospects of success in any appeal to that Court from the Federal Court. Accordingly special leave to appeal was refused.
In brief the applicant had claimed to fear persecution for reasons of his political opinion in Bangladesh as a prominent member of the Chattra League (the student wing of the Awami League) and to fear harm from members of the rival Bangladesh National Party, the BNP. He claimed to have been attacked on one occasion and to fear further harm as the BNP was, at the relevant time, in power in Bangladesh.
As I summarised in my earlier judgment, the Tribunal found that the applicant was not a credible witness and that he was insufficiently prominent to lead him to being targeted for his political activities. It found that he had not been targeted by the authorities and that adequate state protection was available from political enemies. It concluded that any fears that he had were not well founded.
The grounds raised in the present application are generally expressed as were the grounds that the applicant raised in his original application for judicial review. They are that the Tribunal made its decision in bad faith, deprived the applicant of natural justice, denied the evidentiary proof of his claims, did not reflect the material facts of his claim, gave a decision preset in the back of the Tribunal's mind, mixed up many facts with this decision which affected the decision, concentrated on particular facts while ignoring many other facts and made up its mind without any inquiry and did not believe his genuine Convention-based refugee claim. The application also refers to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 “for the Refugee Review Tribunal be joined as a party to the proceedings”. The notice of motion joins the Refugee Review Tribunal as a party to the proceedings.
In the earlier proceedings the application for review contained nine generally expressed and unparticularised grounds which I considered in detail. In so doing I dealt with the matters now raised in the present application (except insofar as actual bias is alleged – which was dealt with by Wilcox J). In addition I also considered the possibility that, as raised by a general contention that there was a lack of procedural fairness, there was a failure to allow the applicant an opportunity to comment on independent evidence or a breach of s.424A in relation to such independent evidence. I found no evidence to establish the basis for a claim of a lack of procedural fairness. In relation to s.424A while there was nothing to suggest that independent country information had been put to the applicant in writing, I also reached the conclusion that the information relied on was general country information of the nature that would come within the s.424A(3)(a) exception on the authority of NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264.
I did go on to say that even if that were not the case and there had been non-compliance with the strict requirements of s.424A(2) of the Act, such non-compliance would not, without more, constitute jurisdictional error on the then authority of NAHV v Ministerfor Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214 at 23 – 25, as recognised by the Full Court of the Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at 32.
The legal representative for the first respondent brought to the attention of the Court the possibility that in the present application filed by the applicant on 8 September 2005 the applicant may be attempting to take issue with this finding in his reference to the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. I have taken this possibility into account.
However, while my finding that strict compliance with s.424A(2) was not required would now have to be reconsidered in light of the findings of the High Court in SAAP, it was only an alternative basis for that part of the decision. The critical finding was that there was no breach of
s.424A(1) as the country information fell within the exception in
s.424A(3)(a). The decision in SAAP says nothing in relation to that issue. Moreover, as was pointed out by the respondent, the application for special leave to the High Court was determined on 16 June 2005, which was after the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (made by that Court on 18 May 2005). This is relevant to any argument that the applicant now seeks to rely on grounds which could not have been raised at any earlier time. That is not the case in this instance (cf Gray J in Applicants M16 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 in relation to grounds which could not have been raised at an earlier time).
In essence what the applicant seeks to do in the present proceedings is challenge the same decision on essentially the same basis that was dealt with at length in my earlier decision and by Wilcox J and in which the applicant did not succeed in his application for special leave. In all of these circumstances I am satisfied that the application is an abuse of process within the well established principles in Walton v Gardiner (1993) 177 CLR 378 at 393. The only reasonable inference in the circumstances is that the present application is an abuse of process within the meaning of that term as discussed in Walton v Gardiner. It has been made for no purpose other than to extend the applicant's bridging visa and to delay his removal from Australia. It is an abuse of process to relitigate a determined issue.
This is not a case in which the applicant has not had the benefit of a final judicial determination of his prior application. The issues raised by the applicant were determined in the prior proceedings or could have been raised in the previous proceedings. The applicant is estopped from bringing this application or revisiting those reasons. Even if the strict principles of res judicata are not applicable the applicant seeks to relitigate the same claims for relief raised in earlier proceedings in the sense considered in Somander v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 and A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306. I am satisfied that the principles of Anshun estoppel apply (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). Insofar as they were not raised in the earlier application, the grounds raised in the present application could have been raised in the earlier application. It was unreasonable for the applicant not to have done so. There are no special circumstances in which this doctrine should not be applied, particularly in light of what I have said about the precise basis for my decision in relation to s.424A(1) and the timing of the decision of the High Court in relation to any SAAP issue.
In all of the circumstances, as the application is an abuse of process or on the alternative bases of res judicata or Anshun estoppel I am satisfied that it should be dismissed. I also consider that in the particular circumstances of this case, bearing in mind the past proceedings and the nature of the present proceedings, it is appropriate that the unsuccessful applicant should pay the costs of the first respondent on an indemnity basis as sought.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 14 February 2006.
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