SZBAC v Minister for Immigration
[2005] FMCA 1548
•6 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBAC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1548 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where application for review of RRT decision previously heard and dismissed by Federal Magistrates Court – where appeal heard and dismissed by Federal Court – where application for special leave to appeal to the High Court dismissed – where applicant commenced fresh proceedings in the Federal Magistrates Court. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A Federal Magistrates Court Rules 2001, r.13.10(c) |
| Colgate Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 344 SZBAC v Minister for Immigration & Multicultural & Indigenous Affairs (Federal Court of Australia, 6 October 2004, Hill J) SZBAC v Minister for Immigration & Multicultural & Indigenous Affairs (High Court of Australia, 5 August 2005, McHugh and Heydon JJ) Walton v Gardiner (1992-1993) 177 CLR 378 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 |
| Applicant: | SZBAC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2246 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 October 2005 |
| Date of Last Submission: | 6 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed as it is an abuse of process.
In the alternative the application is not competent.
The Applicant is restrained from filing any further application for review of the decision of the Refugee Review Tribunal made on
17 July 2003 without leave of the Court.
The Applicant is to pay the first Respondent’s costs on an indemnity basis in the sum of $2,400.00 and I allow (3) three months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2246 of 2005
| SZBAC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today has been brought by way of a notice of motion. The solicitor for the first respondent Minister asks the Court that the application filed by the applicant on 18th August 2005 should be dismissed on the basis that (a) the applicant is estopped from bringing proceedings or (b) the proceedings amount to an abuse of the Court’s process for the purposes of r.13.10(c) of the Federal Magistrates Court Rules 2001.
The notice of motion also seeks an order for costs on an indemnity basis and an order that the Registry not accept any new application from the applicant, seeking to challenge the decision of the Refugee Review Tribunal handed down on 17th July 2003, without leave of the Court.
The applicant filed his application on 18th August 2005. The application seeks three orders or declarations. I will quote them in full.
(1) A declaration that the purported decision of the Refugee Review Tribunal (the Decision) was not a “privative clause decision” within the meaning of s. 474 of the Migration Act 1958.
(2) Declaration that the decision was made in excess of the jurisdiction of the Tribunal is consequently void and of no effect.
(3) An order that the Tribunal consider the matter before it according to law, whether under s. 39B of the Judiciary Act or as an order of review under s. 5 of the Administrative Decisions (Judicial Review) Act.
The application sets out seven grounds of the application.
They include:
(a) That the Tribunal exceeded its jurisdiction by asking itself the wrong question.
(b) That the Tribunal denied the applicant natural justice and that the Tribunal was biased.
(c) That the Tribunal exceeded its jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to investigate the applicant’s claims.
(d) The Tribunal denied the applicant procedural fairness by ruling out his claim as fabricated without proper investigation.
(e) Whilst the Tribunal did not use country information as specific, but general information weighed against the applicant’s case in the final outcome.
(f) As a member of the Muslim minority in India, the applicant and the Muslim community are the victims of systematic torture
(g) That the Tribunal was preoccupied and did not have a fresh look.
(h) A reference to the case Plaintiff S157 of 2002 and the Commonwealth of Australia and a reference to an article by
Dr Mary Crock and Catherine Chang entitled Making Sense of the Rule of Law: Trends in the Judicial Review of Migration Decisions Post S157 of 2002 and the Commonwealth of Australia.
Those are the grounds upon which the applicant relies.
Apparently the application was prepared for the applicant free of charge by a member of the community. This would no doubt explain why it is basically similar to another application which was before me earlier this morning, in a matter called NAPF and Minister for Immigration and Multicultural and Indigenous Affairs. The Court’s file number to that case is SYG1993 of 2005. The grounds contained in the applicant’s application bear little relationship to the grounds contained in his amended application to review the same decision, filed in earlier proceedings.
The applicant has also filed a document entitled Applicant’s Argument against the Notice of Motion. It is noteworthy that the document entitled Applicant’s Argument against the Notice of Motion, which is some six pages in length, only contains one reference to the subject matter of the notice of motion, and that is the following, which appears on page 5:
I agree that if my case is a matter of criminal court or the civil litigation, than the issue of res judicata or estoppel principal.
The basis of the notice of motion is that the applicant is seeking to relitigate a matter that has already been decided by the Court.
The applicant originally commenced proceedings seeking a review of the same decision of the Refugee Review Tribunal on 25th July 2003. That application was heard and decided by the Federal Magistrates Court of Australia on 22nd April 2004. The Court’s media-neutral reference to that decision is SZBAC and Minister for Immigration, Multicultural and Indigenous Affairs [2004] FMCA 344. In that decision, after allowing the filing of an amended application, Barnes FM dismissed the application, having found that no jurisdictional error had been established.
The applicant then exercised his right to appeal against that decision to the full Court of the Federal Court of Australia. On 6th October 2004, which is by coincidence exactly a year ago, the late Hill J heard and dismissed the applicant’s appeal. On 1st November 2004 the applicant then applied for special leave to appeal in the High Court of Australia. On 12th August 2005, the High Court dismissed that application.
Undeterred by this continuous pattern of rejection by three Courts, the applicant then filed the present application in the Federal Magistrates Court on 18th August 2005. He told the Court that he should be permitted to relitigate the case because he did not obtain free legal advice on an earlier occasion and that his case was real and genuine. He said that he had not previously been able to get documents to present to the Refugee Review Tribunal in support of his case.
He believed that Refugee Review Tribunal had treated him unfairly because even though he gave oral evidence to the Tribunal, he was not allowed to present any documentary evidence.He did not raise that issue at the hearing in the Federal Magistrates Court. He did raise that issue of the need to obtain documents in the appeal heard by Hill J. A copy of the reasons for judgment of the appeal, dated 6th October 2004 is annexed to the affidavit of Ms Laura Gazi, a solicitor employed in the Sydney office of the Australian Government Solicitor. At paragraph 6 of his Honour’s decision, his Honour said this:
The appellant’s real complaint was that the Tribunal had failed to investigate his case properly. He said that he had been unable to provide evidence about his case to the Tribunal. He said that he had now located a person, apparently an employee who had worked under him, such that if he were now given time to obtain documents and present them to the Tribunal, his case would be clear. He said that if the Tribunal were to rehear his case with the benefit of the evidence which he expects to be able to obtain, the Tribunal would come to the conclusion that he was, in fact, telling the truth.
The applicant has made the same submission to this Court exactly a year later. He apparently has made no further progress in obtaining these documents, although he asserted that these documents did exist when I raised with him the question that they did not exist.
The applicant believes that if he is given more time he will obtain these mysterious documents, and if he is allowed a further hearing by the Refugee Review Tribunal, the documents will make everything clear at last.
I have had the benefit of reading the written submissions prepared by the solicitor appearing for the respondent, Ms Gazi. They are, if I may say so, clearly written and well researched. The submissions refer to a notice of objection to competency, which had been filed at the Registry today. The notice of objection to competency states that the respondent objected to the jurisdiction of the Court to try the application, on the grounds that the decision was a privative clause decision and the application had not been lodged within 28 days of the applicant being notified of the Refugee Review Tribunal decision, contrary to
s. 477(1A) of the Migration Act.
At paragraph 16 of her submission, Ms Gazi states that it is not necessary for the Court to analyse in detail the grounds for seeking judicial review, as set out in the present application. Rather, the Court need only be satisfied that:
a)The applicant, by his amended application for review invoked the same jurisdiction as the present application, that is, s. 483A of the Migration Act.
b)The present application seeks the same relief as that sought by the original application, even though the relief sought is not in identical terms.
c)That the Federal Magistrates Court had made a finding to the effect that the decision is a privative clause decision, which was upheld on appeal to the Federal Court and upon which the High Court did not cast any doubt when it refused the application for special leave.
Whilst none of the Courts expressly said that the decision was a privative clause decision, it is clear that this was the case. At paragraph 19 of her submissions, Ms Gazi relies on res judicata and issue estoppel. She relies on the decision of Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 per Lindgren J at paragraph 43, and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36].
In her submission she says:
It is well established that for res judicata to operate
(a) There must have been a final judgment by a judicial tribunal acting within its jurisdiction, and that judgment must be based on the establishment or failure to establish a cause of action.
(b) The later proceeding must raise the same cause of action.
(c) Except where the prior judgment was in rem, the parties to the two proceedings must be the same.
She goes on to submit that where res judicata applies, it is a complete bar to a new claim because the cause of action is extinguished by the first judgment. Ms Gazi also relies on the existence of what is known as an Anshun estoppel. This principle arises from the decision of
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at pages 612, 613. As Ms Gazi points out at paragraph 24 of her submissions:In the absence of special circumstances, the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the previous proceedings.
Ms Gazi also points out that even if the Court was not satisfied that the circumstances do not give rise to estoppel, the proceedings should nonetheless be dismissed as an abuse of process of the Court. Rule 13.10(c) of the Federal Magistrates Court Rules gives the Court power to act in this way. The submission refers to the decision of the High Court of Australia in Walton v Gardiner (1992-1993) 177 CLR 378 at 392 to 393. In the joint judgments of Mason Chief J and Dean and Dawson JJ, it was said:
Yet again, 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 anew a case which has already been disposed of by earlier proceedings.
In my view, with respect to Ms Gazi’s submission, this sets out a comprehensive yet precise summary of the relevant law. In my view, it appears to me to be clear that the principle of res judicata operates in this case. Even if I were not so satisfied, I would certainly be satisfied that an Anshun estoppel would be appropriate in this case. I note that Barnes FM permitted the filing of an amended application on the day she heard the case and Hill J, in the appeal proceedings, permitted submissions to be made upon matters which were not contained in the notice of appeal.
It is clear to me that these proceedings are an abuse of the Court’s process, and a blatant abuse, at that. The applicant has made it clear in his submissions to the Court that he is telling the same story over and over again. He sought a review in the Federal Magistrates Court. When his application was dismissed with costs, he sought an appeal by the full Court of the Federal Court. When his appeal was dismissed with costs, he sought special leave to appeal to the High Court of Australia. When the High Court of Australia dismissed his application for special leave to appeal, he then went back to the Federal Magistrates Court in an effort to start again.
It is a very obvious abuse of the process of this Court and the application will be dismissed. Because of my finding that this application is an abuse of process, I propose to make (1) an injunctive order restraining the applicant from filing any fresh application in this Court for review of the decision of the Refugee Review Tribunal, dated 24th June 2003.
I also note that, in the alternative, his application has been filed out of time, in that the decision of the Refugee Review Tribunal has been held to be a privative clause decision and s. 477(1)(A) of the Migration Act forbids the filing of an application for review of a privative clause decision more than 28 days after the applicant was notified of the decision. (2) I will order, first of all, that the application is summarily dismissed. In the alternative, the application is not competent.
I further order (3) that the applicant is restrained from filing any application for review of the decision of the Refugee Review Tribunal handed down on 17th July 2003 without leave of the Court.
There is an application for costs on behalf of the respondent Minister. The applicant has been unsuccessful in his claim and his application has been summarily dismissed as an abuse of process.
It appears to me that there are grounds for exercising the Court’s discretion for making an order in favour of the respondent Minister. The applicant says that he has no money as he is working just to manage his daily life. I would comment that a shortage of funds is not a ground not to make an order for costs in this jurisdiction but it is a matter for the Court to take into account when assessing time to pay.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,400.00 on an indemnity basis. In my view, it is appropriate to make (4) an order for costs on an indemnity basis and I rely on the decision of the Federal Court in Colgate Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225. I allow three months to pay the costs
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 24 October 2005
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