SZBAQ v Minister for Immigration
[2005] FMCA 1690
•11 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBAQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1690 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | SZBAQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2418 of 2005 |
| Delivered on: | 11 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondents: | Ms K Alexander |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s Notice of Objection to Competency filed on
27 September 2005 is upheld.
The applicant’s application filed on 30 August 2005 is dismissed as incompetent.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Rodney Inder File No: N02/41572) made on 5 June 2003 and handed down on 1 July 2003 or the decision of the Delegate of the Minister of Immigration (of Raul Mendoza) handed down on 8 January 2002 be accepted for filing except with leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2418 of 2005
| SZBAQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 27 September 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submits that the application should be dismissed as this Court does not have jurisdiction to hear it.
In the alternative, by a Response filed on 29 September 2005, the respondent seeks an order dismissing the application filed on
30 August 2005 on the grounds that pursuant:
a)the applicant is estopped from bringing these proceedings, or
b)the proceedings amount to an abuse of the Court’s process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 30 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
5 June 2003 and handed down on 1 July 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 8 January 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZBAQ”.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the first respondent tendered and applied for the affidavit of Kirsty Lee Alexander sworn on 27 September 2005 to be admitted into evidence.
In response to the first respondent’s applications, the applicant tendered and applied for his affidavit sworn on 4 October 2005 to be admitted into evidence.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 2 September 2001. On 10 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 8 January 2002 the delegate refused to grant a protection visa and on 3 February 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed he was born in Bangladesh in 1972 and stated his ethnicity as Bangladeshi and his religion as Islam. The applicant claimed he had a long acquaintance with politics in Bangladesh and political oppression compelled him to leave the country to save his life. He claimed he was involved with Jatiya Party (“JP”) politics since he was at school and joined the party in 1989. The applicant claimed in 1990 he was elected as the joint secretary of the Jatiya Party Golabgonj Thana and he worked as an active campaigner for the JP in the February 1991 elections and became well known to its leaders. The applicant claimed he was elected to a leadership position as an executive member of the JP Sylhet district committee in 1993 and led many demonstrations against the Bangladesh National Party (“BNP”) government and became one of the well known personalities within the region.
The applicant made numerous claims concerning his involvement in Bangladeshi politics in subsequent elections and stated that after the elections in 1996 his house was looted and burnt by members of the Awami League. He claimed a number of false charges were filed against him to jeopardise his political future. In June 1996, as the situation became serious, the applicant claimed he went to the United Arab Emirates. He stated that he had tried on a number of occasions to re-enter Bangladesh but members of his family opposed his decision and there was no provision for lodging a refugee application in the United Arab Emirates.
Litigation history
Ms Alexander, Solicitor for the first respondent, prepared a convenient summary of the litigation history of the applicant which I have adopted paragraphs 4-9 for the purpose of this judgment:
[4]On 9 September 2004 Baumann FM dismissed the application with costs.
[5]On 29 September 2004 the applicant filed a Notice of Appeal from Baumann FM’s judgment in the Federal Court of Australia.
[6]On 11 February 2005 Hely J dismissed the appeal with costs.
[7]On 10 March 2005 the applicant filed an application for special leave to appeal from the judgment of Hely J in the High Court of Australia.
[8]On 4 August 2005 Gleeson CJ and Gummow J dismissed the application for special leave to appeal.
[9]On 30 August 2005 the applicant filed a further application under s.39B of the Judiciary Act 1903 (Cth) in this Court seeking review of the same decision of the Tribunal dated 1 July 2003.
Respondent’s application
Ms Alexander, appearing for the first respondent, provided written submissions prior to the hearing in support of the respondent’s application and I have adopted paragraphs 13-29 for the purpose of this judgment:
[13]In the first respondent’s submission, it is not necessary for the Court to analyse in detail the grounds for seeking judicial review as set out in the present application as the Tribunal’s decision is a privative clause decision and pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), this Court has no jurisdiction to hear the application.
[14]The Court need only be satisfied that:
a)the applicant by his original application for review (referred to in paragraph 8 above) invoked the same jurisdiction as the present application;
b)the present application seeks the same relief as that sought by the original application. Although the relief sought by the present application is not in terms identical to that sought by the original application, the desired result is the same (i.e. to quash the decision of the Tribunal and remit the matter to it for reconsideration according to law);
c)this Court has found that the Tribunal’s decision is absent jurisdictional error and an appeal from that decision was dismissed by the Federal Court and not cast doubt on by the High Court.
[15]Accordingly, the Tribunal’s decision handed down on 1 July 2003 should be regarded as a privative clause decision. As the applicant has filed his application for judicial review of a privative clause decision outside the mandatory statutory time limits imposed by s.477(1A) of the Act, this Court has no power to extend that time and accordingly has no jurisdiction to hear the application.
[16]In the event that the Court is not minded to accept this submission, the first respondent relies on the submissions below.
[17]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; and
c)except where the prior judgment was in rem, the parties to the two proceedings must be the same: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722 per Lindgren J at [43]; Wong v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36].
[18]The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612-3 per Brennan J.
[19]It is the first respondent’s submission that the doctrine of res judicata applies to the present application because, in substance, it seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review application. The substratum of facts giving rise to the right to review are the same, the right to relief in each case is informed by the same principles of substantive law and the proceedings do not differ in any material respect: VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 at [10].
[20]Issue estoppel arises where in a subsequent action a party claims that ‘a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order’: Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J – adopted by Gibbs CJ, Mason and Aickin JJ in Anshun at 597; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 per Emmett, Conti and Selway JJ at [36].
[21]It is the first respondent’s submission that the doctrine of issue estoppel also applies to the current application as issues raised in this application have previously been put in issue and determined between the parties.
[22]Alternatively, it is the first respondent’s submission that even if this matter were not governed by the doctrines of res judicata or issue estoppel, the proceedings are barred by the operation of the doctrine of Anshun estoppel.
[23]Insofar as any of the grounds that the applicant now seeks to rely on are different from the grounds raised previously, the doctrine of Anshun estoppel applies, as they are grounds that ‘properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation’: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [37]-[39]; Anshun at 598 and 602.
[24]In the absence of special circumstances: see BC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 221 at [30]; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [38], the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the previous proceedings.
[25]It is the first respondent’s submission that to the extent that the grounds in the current application were not actually raised in the applicant’s previous proceedings, they could have been so raised. In addition, the applicant has not established special circumstances that would justify the Court exercising its discretion not to apply the Anshun principle.
[26]It is also the first respondent’s submission that even if the circumstances do not give rise to an estoppel, the proceedings should nonetheless be dismissed as an abuse of the process of the Court.
[27]Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
[28]In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ said:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. …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. 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 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”.
[29]In the first respondent’s submission, the present proceedings are just such a case.
Applicant’s submissions
The applicant filed an affidavit prior to the hearing and indicated he would rely on its contents. The document contained a number of generic submissions which did not appear to sufficiently address the issues before the Court. No references were made in that affidavit to the issues of competency, res judicata, issue estoppel or abuse of process. The affidavit contained a number of commonly seen generic grounds used in this jurisdiction by self represented litigants that are not specific to their case before the Court and are unparticularised. There were no direct references to the Tribunal’s decision in respect of the applicant. The document also contained a brief summary of the factual matters in the applicant’s original application and the circumstances he claimed to have experienced in Bangladesh. There were also references to the applicant’s inability to obtain legal representation because of his financial circumstances and recent High Court decisions which had no apparent link to the issues currently before the Court.
Reasons
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 30 August 2005 and seeks review of the Tribunal decision made on 5 June 2003 and handed down on 1 July 2003, which is a period of approximately 25 months. In the interim period, an application to review the decision of the Tribunal has been listed in the Federal Magistrates Court, the Federal Court and a special leave application to the High Court. No error has been found in the Tribunal’s decision. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purpose of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did, as set out in its decision, and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
I accept Ms Alexander’s submissions in respect of res judicata, issue estoppel, Anshun estoppel and abuse of process are correct. However, for the reasons set out above, in respect of the finding that the Tribunal’s decision is a privative clause decision, as the primary issue of jurisdiction, it is not necessary to further examine each of these grounds.
Conclusion
The application filed on 30 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 November 2005
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