SZAYF v Minister for Immigration - [2006] FMCA 595

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYF v MINISTER FOR IMMIGRATION

[2006] FMCA 595

MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – prior judicial review proceedings.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001, r.13.10

SZAYF (No 2) v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 78
Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391
Taylor v Ansett Transport Industries Limited (1987) 18 FCR 4
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
Port ofMelbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005 HCA 24
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
Walton v Gardiner (1993) 117 CLR 378
SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650
Sampson v Minister for Immigration & Multicultural Affairs [2001] FCA 837
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479

Applicant:

SZAYF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3025 of 2005

Judgment of:

Barnes FM

Hearing date:

13 April 2006

Delivered at:

Sydney

Delivered on:

13 April 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application for judicial review filed on 19 October 2005 be dismissed on the grounds that:
(a)the doctrine of res judicata applies and is a complete bar to the application;
(b)Anshun estoppel applies and there are no special circumstances to justify its non-application; and/or
(c)pursuant to part 13 rule 13.10(c) of the Federal Magistrates Court Rules 2001 the proceedings are an abuse of process
That no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 18 June 2003 be accepted for filing except with leave of the court;
That the applicant pay the costs of the first respondent on an indemnity basis fixed in the sum of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3025 of 2005

SZAYF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This matter comes before the court by way of a notice of motion filed by the first respondent on 15 November 2005 seeking that an application filed by the applicant in this court seeking review of a decision of the Refugee Review Tribunal (the Tribunal) be summarily dismissed. The respondent also relies on a notice of objection to competency filed on 31 October 2005. In order to consider these applications it is necessary to have regard to the background to these proceedings.
Relevantly, the applicant arrived in Australia in 2001 and lodged an application for a protection visa. The application was refused; he sought review by the Tribunal. On 18 June 2003 the Tribunal handed down a decision affirming the decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant sought judicial review by application filed in this court on 14 July 2003.
The matter was listed for hearing on 15 November 2004. The application was dismissed for the non-attendance of the applicant. The applicant sought to have the orders dismissing his application for non-appearance set aside. On 9 December 2004 I set aside the orders and listed the matter for substantive hearing on 1 February 2005.
On 1 February 2005 the application for review of the decision of the Tribunal was heard and the application was dismissed. In my judgment, which is reported as SZAYF (No 2) v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 78, I considered the grounds raised by the applicant and also those arising from the material that he put before the court in circumstances where counsel for the respondent had addressed not only the claims as put by the applicant but also issues that might arise out of those claims. I found that no jurisdictional error was established.
The applicant appealed to the Federal Court. On 24 March 2005 the appeal was dismissed by Sackville J for non-appearance of the applicant at the directions hearing. The applicant lodged a notice of motion seeking to set aside the orders dismissing his appeal, together with a supporting affidavit. On 26 April 2005 Sackville J heard the application to set aside the orders dismissing the application. In the course of his judgment his Honour considered not only whether a satisfactory explanation had been provided for non-attendance, but also whether the appellant had an arguable case. Relevantly, his Honour stated at [18] that he saw no basis for a submission that I fell into error in addressing the grounds relied on by the applicant. In those circumstances the appellant's motion was dismissed with costs (see [2005] FCA 459.)
The applicant then sought special leave to appeal to the High Court. On 8 September 2005 the application for special leave to appeal was dismissed by Gummow and Kirby JJ. The transcript of the proceedings (reported at [2005] HC Trans 695) reveals that Gummow J referred to the history of the proceedings and the claims of the applicant and stated that their Honours had reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court and found that there were insufficient prospects of success in any appeal in the High Court. Accordingly, special leave to appeal was refused.
Subsequently the applicant commenced these proceedings by application filed on 19 October 2005, again seeking review of the decision of the Tribunal on generally expressed grounds which canvassed matters substantially dealt with in the prior proceedings, although in some respects there is slight difference in the wording of the application. The applicant also filed an outline of submissions that takes issue with the Tribunal decision in a manner which might be seen to be canvassing grounds of review.
In these circumstances, the first respondent seeks in the alternative that the notice of objection to competency be upheld or that the application be summarily dismissed. In the particular circumstances of this case I consider that the preferable way to deal with this matter is to consider first the application for summary dismissal.
Summary dismissal is sought on a number of alternative bases. First, on the basis that the doctrine of res judicata is applicable because the present application seeks review of the same Tribunal decision that was the subject of the applicant's previous judicial review application. It is contended that, consistent with principles such as those discussed in Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391, Taylor v Ansett Transport Industries Limited (1987) 18 FCR 4, 342 and, relevantly in the migration context, Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192, the doctrine of res judicata is applicable because the substratum of facts giving rise to the right of review are the same.
The substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not differ in any material respect. Res judicata would be a complete bar to the application, the court having no discretion to allow the matter to continue. In these circumstances I consider that, consistent with those principles and the approach that has been taken to res judicata in relation to migration matters, res judicata is applicable as contended for the respondent.
In any event, if that is not the case because of a lack of precise equivalence between the exact grounds raised in each of the proceedings, I am of the view that the proceedings are barred by the operation of the doctrine of Anshun estoppel on the basis that the matters put forward in the current proceedings could have been put in the earlier proceedings, consistent with the principles discussed in Port ofMelbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. Anshun estoppel prevents a party from raising in new proceedings matters that properly belong to the subject of the earlier litigation and that could have been brought forward in the earlier litigation by a party exercising reasonable diligence.
The generally expressed grounds in the present application (which refers to the Tribunal exceeding its jurisdiction or constructively failing to exercise its jurisdiction, asking the wrong question, not taking evidence into account, denying natural justice or procedural fairness, failing to check the authenticity of the applicant's evidence or not giving him an opportunity to comment on its views, failing to check the authenticity of documentary evidence, ruling the claim to be fabricated without proper investigation and not using the country information as specific, being preoccupied and not having a fresh look) are matters which could have been raised in the prior proceedings.
The general and unparticularised reference to the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005 HCA 24, while referring to a case which could not have been relied upon at the time of initiation of the first proceedings, nonetheless is not such as to indicate that the principles of Anshun estoppel should not be applicable in this instance. The matters raised by this reference are matters which could have been raised at the time at which the applicant's first proceedings were commenced. The applicant has not established special circumstances that would justify the court exercising its discretion not to apply the Anshun principle.
In oral submissions the applicant took issue with the respondent's contention that the proceedings had been commenced outside the 28 day time limit. This related to the time between notification of the Tribunal hearing and the present proceedings not the time since the High Court decision. In any event, the fact that the applicant has “continuously” pursued judicial review does not establish special circumstances. Nor do the applicant's claims that he wants a further Refugee Review Tribunal hearing and fears for his life in his home country, or that he now wishes to take the opportunity to raise funds to seek legal advice.
I have had regard to the principles considered by the Full Court of the Federal Court in BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at 22 to 30, but am satisfied that, consistent with what is said in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21, this is a case in which the matters which are now sought to be raised could properly have been raised in the earlier litigation.
Finally, and in the alternative, even if I am wrong in relation to Anshun estoppel, I am satisfied that in the particular circumstances of this case, the present proceedings constitute an abuse of process and ought to be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
The applicant has previously sought judicial review of the same Tribunal decision that is the subject of these proceedings and, consistent with the well established principles discussed in Walton v Gardiner (1993) 117 CLR 378 at 393, in the particular circumstances of this case, the bringing of the current application seeking to review the same Tribunal decision is unjustifiably vexatious. It is an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action in essence as in previous proceedings. See in particular SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650 per Wilcox J at 11 and Sampson v Minister for Immigration & Multicultural Affairs [2001] FCA 837.
The applicant had ample opportunity in the course of the prior proceedings to bring forward any legitimate and bona fide claim and to inform the court of the nature and evidential basis for his claims. He has brought a similar application seeking to review the same Tribunal decision which was dismissed with costs after a final hearing in relation to the substantive claims by the Federal Magistrates Court. While the decision on appeal turned on whether a dismissal for non-appearance should be set aside, nonetheless, in the course of his judgment, Sackville J considered the merits of the applicant's claim and found that he had no arguable case. Special leave to appeal to the High Court was refused as there were no prospects of success with any appeal.
The respondent contended that the court should also have regard to what was said to be a history by the applicant of failing to prosecute his case, in that he had failed to attend the initial substantive hearing in this court and also the directions hearing in the Federal Court. It is not, however, necessary for me to consider those matters in detail, which would require a consideration of the whole of the circumstances, bearing in mind that I did in fact set aside the dismissal for non-appearance in prior proceedings. I am satisfied on the basis of the principles to which I have referred that, even putting aside those matters, the present proceedings are an abuse of process, any proceedings being doomed to fail.
I have had regard to the underlying public interest that there be finality in litigation, that a party should not be repeatedly vexed in the same matter. See SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479. In the particular circumstances of this case, having regard to the nature and extent of the applicant's litigation history and the futility in seeking further judicial review for a decision which has finally been determined, I consider it is appropriate to draw the inference that the applicant has filed the present application simply for the purpose of delaying his departure from Australia and to seek to take advantage of the delay in that way. This is another factor that I have taken into account in determining that the application and the proceedings constitute an abuse of process. The proceedings ought to be summarily dismissed to avoid further public expense in defending a matter which has already occupied considerable time and resources of this court, the Federal Court and the High Court.
I consider that the appropriate orders to be made are the orders that are sought in the notice of motion in relation to res judicata, Anshun estoppel and abuse of process. Hence it is not necessary to address the notice of objection to competency.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: