SZBBM v Minister for Immigration - [2006] FMCA 1361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1361

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – interlocutory application to have application dismissed as abuse of process – prior proceedings in the Federal Magistrates Court, Federal Court and High Court of Australia – whether there is res judicata or issue estoppel between the parties – whether an order should be made that applicant not file further application for review without leave of Court.

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677
Walton v Gardiner (1993) 177 CLR 378
Rogers v The Queen (1994) 181 CLR 251

Applicant:

SZBBM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3464 of 2005

Judgment of:

Emmett FM

Hearing date:

6 September 2006

Date of last submission:

6 September 2006

Delivered at:

Sydney

Delivered on:

6 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms E. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3464 of 2005

SZBBM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first respondent, in accordance with an interlocutory application filed on 20 December 2005, seeks that the applicant's proceeding before this Court, commenced by way of application filed on 28 November 2005 (“the Application”), be dismissed as an abuse of the Court's process. The first respondent contends that the same grounds raised in the Application have been the subject of prior proceedings and determination, and that, in the circumstances, there is a res judicata or issue estoppel of those grounds.
The grounds of the Application are in the following terms:
“1. The decision of the Tribunal:
a. was made without jurisdiction or is affected by an error of Jurisdiction;
b. is affected by an error of law;
c. is so unreasonable that no reasonable decision maker could have made it;
d. is based on a finding for which there was no evidence or other materials
e. take into account irrelevant considerations;
f. fails to take in account relevant consideration.
g. was an improper exercise of power conferred by the Migration Act 1958;
h. was not made in good faith or did not take a bona fide attempt to exercise the powers conferred on the Tribunal.
i. was not capable of reference to the powers given to the Tribunal under the Migration Act 1958 and
j. and otherwise contrary to law.”
In support of the interlocutory application, the first respondent read the affidavit of Olivia Oi Lam Mak, affirmed 19 December 2005.

That affidavit annexed an earlier application filed in this Court on 1 August 2003. That application sought judicial review of the same Refugee Review Tribunal (“the Tribunal”) decision as in the subject of the applicant’s Application.
The grounds relied upon in the earlier application are unparticularised and of a general nature. However, they can be distilled into the following grounds:
a)that the Tribunal erred in that it never investigated the applicant's claim;
b)that the Tribunal erred in that it did not consider the applicant's oral evidence;
c)that the Tribunal erred in that it denied the applicant's genuine claims;
d)that the Tribunal erred in that it did not consider the applicant's situation;
e)that the Tribunal erred in that it decided the applicant's matter without proper justification;
f)that the Tribunal erred in that it made an error of law, procedural fairness and natural justice.
That application was considered by Raphael FM, who, on

19 December 2004, dismissed the applicant's application concluding that he was unable to find any circumstances in which the Tribunal had fallen into jurisdictional error.
Following Raphael FM’s decision, the applicant filed a notice of appeal with the Federal Court in which he identified three further grounds in respect of the conduct of the Tribunal. Those grounds broadly relate to:
i)an allegation of a denial of procedural fairness arising out of the Tribunal's reliance upon country information without giving the applicant an opportunity to comment;
ii)an allegation that the Tribunal failed to act in a bona fide manner; and
iii)an allegation that the Tribunal had regard to independent country information.
The appeal was dismissed by Madgwick J, on 26 May 2005. Each of the grounds identified in the notice of appeal was referred to by Madgwick J and was dismissed. Madgwick J concluded that:
“The appeal is quite worthless and should be dismissed with costs.”
Madgwick J noted that the applicant declined to provide any written submissions or make oral submissions in support of his notice of appeal. Madgwick J stated that he had considered each of the grounds and reached his own independent conclusions.
Special leave was sought to the High Court of Australia by the applicant by way of application filed on 10 June 2005, and that application was dismissed by the High Court on 9 November 2005.
The general nature of the grounds in the application before Raphael FM are sufficiently broad as to have been taken to include most of the grounds of the application presently before the Court. To the extent that those grounds are further particularised before Madgwick J in relation to the use of country information by the Tribunal and the allegation that the Tribunal failed to act in a bona fide manner, those claims are in similar terms to 1(h) of the present Application.
The first respondent submits that the doctrine of res judicata operates in the proceeding before this Court because there has been a final judgment within jurisdiction by a judicial tribunal in respect of the same cause of action between the same parties. Otherwise, the first respondent submits that the applicant is estopped from raising any further issue.
In the words of the Full Court of the Federal Court in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]:
“The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’), and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also quite apart from any psychological detriment that might flow for an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end to the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.”
There has been no new issue identified by either the first respondent or, more properly, the applicant, that was not considered before, and none is apparent to me. Moreover, the identifying cause of action in question is to be determined by matters of substance rather than form (Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677 per Merkel J at [52]).
The doctrine of issue estoppel would operate in relation to every issue 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. There is no issue identified by the applicant that falls into that category, and I cannot distinguish any further ground in the applicant's present application that is capable of amounting to a ground that has not previously been the subject of litigation and determination. Even if that were not the case, there is certainly no issue or ground that is presently raised that could not have been raised in the prior proceeding.
To the extent that the cause of action relies on the sole issue of whether or not the decision is affected by jurisdictional error, that cause of action has been finally determined and the avenues of appeal exhausted. Accordingly, if the proper view is that the only issue before the Court is whether or not the Tribunal’s decision is affected by jurisdictional error and is therefore a privative clause decision, then, plainly, there is a res judicata between the parties on that issue.
However, I have also considered whether the issues raised in the Application were raised by the applicant in prior proceedings and concluded that they were.
The repeated bringing of similar applications is unjustifiably vexatious or oppressive and is likely to bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378 at 393 and Rogers v The Queen (1994) 181 CLR 251 at 255-256).
In those circumstances, the Application before this Court is an abuse of process.
In the circumstances, the applicant's Application should be dismissed because there is a res judicata between the parties or an issue estoppel.
Further, for the reasons already given, because the filing of the Application in the circumstances amounts to an abuse of process, it is appropriate that an order be made that the applicant not be able to file any further application for review of the Tribunal's decision, dated

23 June 2003, without leave of the Court. Accordingly, I make an order in those terms, and the Application is dismissed.

RECORDED : NOT TRANSCRIBED

In the circumstances, that the applicant pay the costs of the first respondent fixed in the amount of $3300.

ORDERS DELIVERED

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

Deputy Associate: S. Tsang

Date: 15 September 2006