SZBCA v Minister for Immigration
[2006] FMCA 246
•20 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 246 |
| MIGRATION – Notice of objection to competency – privative clause decision – application for summary dismissal – abuse of process. |
| Migration Act 1958 (Cth), s.447 Federal Magistrates Court Rules 2001, rr.13.10(c), 13.11 |
| SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 998 SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 334 SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA trans 627 unreported SZCXD vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650 SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377 |
| Applicant: | SZBCA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2660 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the notice of objection to competency is upheld.
That the applicant pay the costs of the first respondent on an indemnity basis fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2660 of 2005
| SZBCA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of a notice of objection to competency and also a notice of motion filed by the first respondent on 4 October 2005 seeking summary dismissal of an application for review of a decision of the Refugee Review Tribunal (the Tribunal) filed by the applicant on 21 September 2005. The solicitor for the first respondent sought to proceed on the basis that if I was satisfied that the notice of objection to competency should be upheld I should uphold that notice and make findings (but not orders) in relation to the matters otherwise sought to be dealt with by way of the notice of motion.
It is necessary to have some regard to the background of this case. The applicant, who is a citizen of Bangladesh, arrived in Australia in August 2000. He applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing on 10 December 2002. On 9 July 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.
On 4 August 2003 the applicant lodged an application for judicial review of the Tribunal decision in this Court. On 9 November 2004 Federal Magistrate Driver dismissed that application and ordered that the applicant pay the first respondent's costs (see SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 998). The applicant had legal representation at the time of the proceedings before Federal Magistrate Driver. Federal Magistrate Driver had the benefit of both written and oral submissions on behalf of the applicant.
In the course of his judgment his Honour addressed each of the grounds raised by the applicant in a further amended application, in particular the issue that the applicant took with the rejection of his claims on a credibility basis. After finding that the grounds of review in the further amended application failed, his Honour stated at [27]:
In the circumstances the decision of the RRT is a privative clause decision and the application must be dismissed.
The applicant filed a notice of appeal in the Federal Court of Australia on 23 December 2004. On 24 March 2005 Wilcox J ordered that the appeal be dismissed with costs (see SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 334). In the course of his judgment Wilcox J considered not only the judgment of Federal Magistrate Driver (finding that he saw no reason to disagree with anything that Federal Magistrate Driver said about the grounds raised) but also considered the appellant's submission that he disagreed with Tribunal findings about his sexuality. His Honour stated that such findings were findings of fact not able to be reviewed by the Court.
Wilcox J recorded (at [7]) that he had explained to the appellant the nature of jurisdictional error and that the appellant told him he could put no submissions about the law applied by the Tribunal or the procedures followed by it and could advance no argument of jurisdictional error to the court. Wilcox J continued:
I have carefully considered the Tribunal's reasons for decision.
I see no jurisdictional error in the reasons. Accordingly, the only course open to me is to dismiss the appeal.
The applicant then filed an application for special leave to appeal to the High Court on 19 April 2005. On 29 August 2005 the application for special leave to appeal was dismissed by McHugh and Heydon JJ. In SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA Trans 627 McHugh J is recorded as stating:
In the absence of an error of law there was no basis for this Court to disturb the Tribunal's findings and conclusions. This application raises no question of law and must be dismissed.
Thereafter the applicant commenced these proceedings by application filed on 21 September 2005, again seeking review of the Tribunal decision. In those circumstances the respondent contends that the application for judicial review was filed outside the 28 day time limit imposed by section 477(1A) of the Migration Act 1958 (Cth) (the Act) in relation to privative clause decisions (which was in force at the time this application was filed).
It is contended that as Federal Magistrate Driver found that the decision of the RRT was a “privative clause decision” the application must be dismissed. Moreover, in dismissing the appeal, Wilcox J stated that having considered the Tribunal's reasons for decision, he saw no jurisdictional error in the reasons.
Given the clear statement by Federal Magistrate Driver and the confirmation by Wilcox J sitting in the Full Court of the Federal Court in this instance, I am satisfied that the Tribunal decision handed down on 9 July 2003 is properly regarded as a privative clause decision. The applicant filed the present application for judicial review of a privative clause decision outside the mandatory statutory time limits. In those circumstances the Court has no power to extend that time and accordingly no jurisdiction to hear the application for review of the decision of the Refugee Review Tribunal. The notice of objection to competency should be upheld.
In the alternative, the respondent sought to move on the notice of motion seeking summary dismissal. In the circumstances it is not necessary to deal with that application but for the sake of completeness (should I be wrong in my finding that the Court has no jurisdiction in upholding the notice of objection to competency) I indicate my findings in relation to the grounds sought to be relied upon in the notice of motion.
First, it is contended, and I accept, that the doctrine of res judicata applies to the present application which 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 of review are the same, the substance of the proceedings are the same and the right to relief in each case is informed by the same substantive law principles. There is nothing to suggest, and I am not satisfied, that the proceedings differ in any material respect. Res judicata is a complete bar to the application and on that basis the Court would have no jurisdiction to allow the matter to continue.
In the alternative the doctrine of issue estoppel would apply as the issues raised in this application have been previously put in issue and determined between the parties. Moreover the doctrine of Anshun estoppel would apply as the matters put forward in the current proceedings, if not dealt with in their entirety in the past, could have been put in the applicant's earlier proceedings. Anshun estoppel, as the respondent contends, prevents a party from raising in new proceedings matters that properly belong to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence. There is nothing to suggest that the present grounds could not have been raised in the previous proceedings. I note that the applicant had the benefit of legal representation in the proceedings before Federal Magistrate Driver. I also note that the Court had a transcript of the Tribunal hearing before it. The applicant has not established special circumstances that would justify a Court exercising its discretion not to apply the Anshun estoppel principle.
More generally, the current proceedings are, I am satisfied, an abuse of process. On that basis, were it not for my upholding the notice of objection to competency, I would have dismissed the proceedings pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001. The applicant in this case is attempting to relitigate the same matter by reference to the same cause of action as in previous proceedings, see in particular SZCXD vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650 and SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377.
The applicant has had prior legal proceedings in relation to the same Tribunal decision dealt with in this Court, in an appeal in the Full Court of the Federal Court and in an application for special leave to appeal to the High Court. I have had regard to all of the circumstances including the underlying public interest in the finality of litigation and that a party should not be repeatedly vexed in the same matter. There is nothing in the material before the Court to suggest that there is any reason why the matters now sought to be raised could not have been and were not raised in the prior proceedings. I note in that respect that when given the opportunity to make oral submissions in relation to the matters before the Court, the applicant made no submissions whatsoever. In all the circumstances I draw the inference that the applicant has filed the present application for the collateral purpose of extending the period of his stay in Australia.
Federal Magistrate Driver gave full consideration to the case as did Wilcox J who saw no jurisdictional error in the reasons. There is nothing in the present case, beyond a general contention (that the Tribunal exceeded its jurisdiction, constructively failed to exercise its jurisdiction, failed to take into account oral evidence, denied him natural justice, was biased, or that there was an apprehension of bias, or failed to give him an opportunity to comment on its provisional views) that raises an arguable case of jurisdictional error.
As indicated, were it not for my upholding the notice of objection to competency, I would have dismissed these proceedings as an abuse of process pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful, in that the notice of objection to competency has been upheld. The first respondent seeks that he pay costs on an indemnity basis, particularly in light of my findings that the current proceedings are an abuse of process. The applicant's response is to state that he cannot afford to pay costs. However, his impecuniosity is not a reason for departing from the normal rule that the unsuccessful applicant should pay the costs of the respondent.
Moreover, in the circumstances of this case and where I am satisfied that the institution of the proceedings constitutes an abuse of process, I consider it is appropriate that the order for costs be an indemnity basis. The amount of $3,500 which is sought is appropriate in light of the nature of this and other similar matters.
The other order sought is an order that no further application by the applicant to review the decision of the Tribunal be accepted for filing except with leave of the Court. I am not however persuaded on the material before me that the circumstances are such that I should, if indeed I have the power to do so outside Rule 13.11 of the Federal Magistrates Court Rules 2001, make the order that is sought by the first respondent.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 March 2006.
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