SZBOM v Minister for Immigration
[2004] FMCA 196
•18 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOM & ANOR v MINISTER FOR IMMIGRATION & ORS | [2004] FMCA 196 |
| MIGRATION – Application by respondent for summary dismissal – where applicants initiated proceedings in the High Court for orders nisi – where matter remitted to Federal Court – where amended application for final relief lodged – where respondent sought summary dismissal – where applicants consented to dismissal – where applicants subsequently brought proceedings in Federal Magistrates Court – where grounds of review not particularised – where respondent alleges abuse of process in that applicants seeking to agitate previously dismissed cause of action. |
Somanader v The Minister (2000) 178 ALR 677
Chamberlain v DCT (1988) 164 CLR 502
Samson v The Minister (2001) FCA 837
SZAMM v The Minister (2003) FMCA 377
| First Applicant: | SZBOM |
| Second Applicant: | SZBON |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | JOHN LYNCH, MEMBER, REFUGEE REVIEW TRIBUNAL |
| Third Respondent: | PRINCIPLE MEMBER, REFUGEE REVIEW TRIBUNAL |
| File No: | SZ 259 of 2003 |
| Delivered on: | 18 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicants: | No appearance |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application allowed
The applicants to pay the respondent's costs assessed in the sum of $2,750 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2059 of 2003
| SZBOM |
First Applicant
| SZBON |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| JOHN LYNCH, MEMBER, REFUGEE REVIEW TRIBUNAL |
Second Respondent
| PRINCIPLE MEMBER, REFUGEE REVIEW TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
This is an application by the first respondent for summary dismissal pursuant to Part 13, Rule 13.07 of the Federal Magistrates Court Rules. I admitted into evidence today an affidavit of Rebecca Roberts dated 10 February 2004, an affidavit of Rebecca Leahy (formerly Roberts) dated 5 March 2004, an affidavit of Andrew Duncan dated 16 March 2004, and an affidavit of Rebecca Leahy dated 16 March 2004.
The applicants are husband and wife. They are citizens of Sri Lanka of Sinhalese ethnicity who arrived in Australia on 26 December 1998. On 5 February 1999 they lodged an application for protection visas. On 58/31 May 1999 a delegate of the Minister refused their application and on 29 June 1999 the applicants lodged an application for review with the Refugee Review Tribunal.
On 4 April 2002 the applicants attended a hearing before the Tribunal and on 16 October 2002 the Tribunal affirmed the decision of the delegate not to grant them protection visas.
On 15 November 2002 the applicants' former solicitor filed a draft order nisi and an accompanying affidavit in the High Court of Australia seeking review of the Tribunal's decision. On 7 February 2003 orders were made by Hayne J remitting the matter to the Federal Court. On 10 July 2003 the applicants served an amended application for review.
On 24 July 2003 the respondent filed a notice of motion for summary dismissal of the application and on 2 September 2003 the applicants served a further amended application for review. This further amended application for review was no longer in the form of an application for an order nisi but was in the form of an application for final relief.
On 8 September 2003 the date upon which the Minister's notice of motion was to be heard the applicants' legal representative indicated that he had instructions to consent to the dismissal of the primary application. As a consequence, Mansfield J ordered that the application be dismissed and that the applicants pay the Minister's costs.
On 2 October 2003 the applicants commenced the present proceedings in this court. The grounds of the application are not as particularised as the application which was before the Federal Court. Indeed, only one ground has any form of particulars at all. That ground is as follows:
1. That a breach of the rules of natural justice occurred in connection with the making of the decision.
(1.1) The applicant was not given the opportunity to respond to certain material relied upon by the Tribunal. The material which was not presented to the applicant was dated past the hearing date. The applicant was not given a fair chance to comment on the material.
On 10 February 2004 the Minister filed a notice of motion seeking to have the present application summarily dismissed on the grounds of res judicata, issue estoppel, anshun estoppel and abuse of process.
The primary ground upon which the applicants sought relief in the Federal Court proceedings by way of their further amended application was an alleged breach of the rules of natural justice. The facts which supported that ground were that the Tribunal in its decision utilised country information which was not put to the applicants nor could it have been put to the applicants because it came into the possession of the Tribunal after the hearing. It would seem to me that this is the very matter which is sought to be agitated in this court under the ground 1 which I have extracted. The other grounds are not particularised at all, they just indicate a denial of procedural fairness and an error of law.
It is clear from Somanader v The Minister (2000) 178 ALR 677, that a dismissal of proceedings by consent orders is sufficient to support the application of the principles of res judicata, issue estoppel and Anshun estoppel: see also Chamberlain v DCT (1988) 164 CLR 502 at 508 per Deane, Toohey and Gaudron JJ. Mr Lloyd submits that at the time the original judicial review application was dismissed it was an application for final orders and not an application for orders nisi. He says it would follow that res judicata arises in relation to the cause of action covered by the original proceedings and that an Anshun estoppel arises in relation to anything not covered but which could have been. I think there is much force in Mr Lloyd's argument and I am prepared to proceed on that basis today.
Mr Lloyd also argues that the application itself constitutes an abuse of process. He says that the applicants are seeking to agitate again matters which were or could have been pursued in the original proceedings which they agreed to have dismissed. The Federal Court has held in Samson v The Minister (2001) FCA 837 and in SZAMM v The Minister (2003) FMCA 377 that this type of activity, the re-agitation of previously dismissed causes of action, constitutes an abuse of process.
I am satisfied that the Minister has made out his case. I dismiss the application. I order that the applicants pay the respondent's costs which I assess in the sum of $2,750 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I note for the purposes of this judgment that the applicants did not attend the hearing. Affidavits of service were produced. The matter was due to be heard at 9.30am today and there was no attendance when the applicants were called at 9.45am.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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