SZBPB v Minister for Immigration
[2006] FMCA 1907
•11 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1907 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether application is an abuse of the Court’s process where issue of jurisdictional error determined in prior proceedings – res judicata. |
| Federal Magistrates Court Rules 2001, r.13.10(c) |
| Wong v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 242 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 |
| First Applicant: | SZBPB |
| Second Applicant: | SZBPC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3563 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 December 2006 |
| Date of last submission: | 11 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2006 |
REPRESENTATION
| The Applicants appearing on their own behalf |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms D. Dinnen, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3563 of 2005
| SZBPB |
First Applicant
| SZBPC |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By notice of motion filed on 6 February 2006, the first respondent seeks dismissal of the applicants’ proceeding, commenced by way of application in this Court on 5 December 2005. In support of the motion, the first respondent reads the affidavit of Andrew John Crockett, sworn 6 February 2006. Mr Crockett's affidavit annexes the decisions involved in the litigation history between these parties.
The litigation history commenced on 7 October 2003, when the applicants filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 18 September 2003, affirming a decision of a delegate of the first respondent (“the Delegate”), dated 5 November 2002.
On 22 March 2005, an application before this Court for judicial review of the Tribunal’s decision was heard and dismissed by Driver FM on the basis that the Tribunal's decision was not affected by jurisdictional error.
On 8 April 2005, the applicants lodged an appeal from the decision of Driver FM with the Federal Court of Australia. That appeal was heard and dismissed by Stone J on 17 June 2005, again, on the basis that the Tribunal's decision was not affected by jurisdictional error.
On 8 July 2005, the applicants sought special leave from the High Court of Australia in respect of the decision from the Federal Court of Australia.
On 14 November 2002, Gummow and Kirby JJ dismissed the applicants’ application for special leave on the basis that the appeal had insufficient prospects of success.
On 5 December 2005, the applicants filed a further application in this Court seeking judicial review of the Tribunal's decision, being the application the subject of these proceedings. The application filed on
5 December 2005 did no more that make the bare assertion that the Tribunal’s decision “involves legal error”.
On 6 February 2006, the first respondent filed the notice of motion with which I am presently dealing. The applicants are unrepresented before me this morning, although have the assistance of an interpreter.
On 6 November 2006, the applicants filed an amended application that is largely made up of submissions and restating factual claims, although it may disclose an allegation that the Tribunal did not deal with one of the applicants’ claims. The amended application is written in a most unhelpful and obscure manner. However, it remains that the only issue between the parties for determination is whether the decision of the Tribunal is affected by jurisdictional error.
The first named applicant is the husband of the second named applicant, whose application depends on the outcome of her husband.
The first named applicant submitted that what he had told the Tribunal was the truth and that his submission is true and fair. He informed the Court that the applicants did not attend the Tribunal's hearing because of mistakes.
Counsel for the first respondent submitted that it is an abuse of the Court's process to bring repeated proceedings, and that the first respondent has already gone through proceedings litigating the same issue and ought not to be troubled twice. Counsel for the first respondent also submitted that there is a serious public interest in preventing an abuse of the Court's process, as in allowing repeated proceedings litigating the same issue and that an ordinary person would see the Court's process as being brought into disrepute by the use of the Court's process in that fashion. The first respondent submitted that an ordinary person knowing of these proceedings would wonder: what is the point of the Federal Magistrates Court, the Federal Court of Australia and the High Court of Australia ever having heard the earlier matters in the first place?
Counsel for the first respondent submitted that, alternatively, the issue before the Federal Magistrates Court, the Federal Court and the High Court of Australia was, whether or not the decision of the Tribunal handed down on 18 September 2003, was affected by jurisdictional error. That issue was the only issue between the parties, and it had been determined against the applicants by the Federal Magistrates Court on 22 March 2005. Appeals from that decision were dismissed. Counsel for the first respondent submits that, in those circumstances, it is an abuse of the Court's process for the applicants to again seek to litigate the same issue, and that the doctrine of res judicata or issue estoppel would prevent them from doing so.
I agree with the first respondent’s submissions.
The Court ought to ensure that its processes are not abused by the allowing of repeat applications between the same parties over the same issue where there is a res judicata or issue estoppel between the parties (Wong v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]). It is an abuse of the Court’s process, is vexatious and oppressive for the applicants to bring the current proceeding which seeks to litigate the same cause of action and the same issue between the parties where those matters have been finally determined.
In addition, having regard to the conduct of the applicants with respect to the litigation history of the parties, the proceeding commenced in this Court by way of application on 5 December 2005 is an abuse of the Court's process, vexatious and oppressive. (See Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256).
The first respondent seeks an order in terms of order 2 and 3 of the motion, that the Registry not accept for filing any further application for review of the Tribunal's decision without prior leave of the Court and that the applicants pay the first respondent’s costs of the proceeding on an indemnity basis. In light of the finding that the applicants' application is an abuse of the Court's processes, and having regard to the reasons for that finding, it is appropriate that the orders be made.
Accordingly, I order that the application be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 and that the Registry not accept for filing any application for review of either the Tribunal’s decision or the Delegate’s decision without leave of the Court.
ORDERS DELIVERED
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 20 December 2006
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