SZBQN & Ors v Minister for Immigration & Anor
[2007] FMCA 1290
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1290 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa – second application. PRACTICE & PROCEDURE – Jurisdiction – application incompetent – abuse of process. |
| Migration Act 1958 (Cth), ss.477, 447(2) Federal Magistrates Court Rules 2001, r.44.12(1)(a) |
| BC v Minister for Immigration & Multicultural Affairs (2001) FCA 1669; (2001) 67 ALD 60; (2002) FCAFC 221 Re Ruddock ex parte; LX [2003] FCA 561 Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 SZBQN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1045 SZBQN & Ors v Minister for Immigration & Anor [2006] FMCA 718 SZBUN v Minister for Immigration [2005] FMCA 1297 |
| First Applicant: | SZBQN |
| Second Applicant: | SZBQO |
| Third Applicant: | SZBQP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1063 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 July 2007 |
| Date of Last Submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Mr B. Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The requirement for a litigation guardian for the third applicant is dispensed with.
The application is dismissed as incompetent.
In the alternative, the application is dismissed as an abuse of process.
The first and second applicants are to pay the first respondent’s costs fixed in the sum of $2,500.00.
No further application for review of the decision of the second respondent Refugee Review Tribunal signed on 22 August 2003 and handed down on 18 September 2003 or of the decision of a delegate of the first respondent Minister made on 22 July 2002 refusing to grant protection (class XA) visas to the applicants is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1063 of 2007
| SZBQN |
First Applicant
| SZBQO |
Second Applicant
| SZBQP |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on
22nd August 2003 and handed down on 18th September 2003. In that decision a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to use the name of Minister at that stage, refused to grant protection (Class XA) visas to the three applicants.
The applicants, who are a husband, wife and child, filed an application on 2nd April 2007 for judicial review of that decision. In that application it is claimed as follows: first, that the Refugee Review Tribunal dismissed the application for review on 22nd August 2003 without cogent grounds; second, the Tribunal made jurisdictional error and so doing made an error of law; third, that the applicants do believe that there are sufficient grounds for a prima facie case in the proceedings to challenge the Tribunal decision; further, that the Tribunal made jurisdictional error, error of law, and procedural fairness when making its decision.
The application, which is combined with an affidavit states:
That the applicants received the Tribunal decision, 26 August 2003.
The first point to make is that the third applicant is a child of the first and second applicants. The third applicant has no separate case but relies on the case of the first applicant. In the circumstances, I do not consider that there is a need to appoint a litigation guardian from the third applicant and I propose to dispense with that requirement.
The first respondent, now known as the Minister for Immigration & Citizenship, has filed a response saying that the application ought to be dismissed. There are several reasons given: first, that the application is incompetent, not having been brought within the time allowed pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), second, and alternatively, the applicants are barred by reason of the res judicata from bringing the application for reasons that the applicants have already sought judicial review of this decision by an application, filed in this Court on 15th October 2003.
On 2nd September 2005, Barnes FM dismissed the application on the basis that no jurisdictional error had been established. The citation of this decision is SZBUN v Minister for Immigration [2005] FMCA 1297. An application by the first applicant for an extension of time in which to file and serve a notice of appeal against the orders of the judgment of Barnes FM was dismissed by Jacobson J on 29th November 2005 because his Honour was satisfied the first applicant had no real prospects of success on an appeal. The citation to that decision is SNBQN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1045.
Further, the first respondent claimed that the applicant subsequently reapplied to the Tribunal, differently constituted for a second review of the delegate's decision. The Tribunal concluded on 23rd March 2006 that it lacked jurisdiction because the delegate's decision had already been reviewed by an earlier Tribunal and the decision of that Tribunal had been found to be free from any jurisdictional error.
An application for review of the second Tribunal decision was summarily dismissed by Driver FM on 19th May 2006. (See SZBQN & Ors v Minister for Immigration & Anor [2006] FMCA 718).
The response filed by the first respondent also claims that further or alternatively the applicants who estopped by reason of the principles of Anshun estoppel from bringing the application for the reasons mentioned in respect in the claim of the application of res judicata, and there are no special circumstances which warrant the Court declining to apply for the Anshun principles. The response also claims the grounds of the application for wholly unparticularised and do no disclose an arguable jurisdictional error by the second respondent. Finally, it is claimed that the application is an abuse of process.
In addition to the matters already relied on the claim of abuse of process is stated to be the delay together with the previous proceedings referred to in the response, the unparticularised nature of the grounds and the operation of Anshun estoppel principles reveals an abuse of process. It is further claimed in the response that it can be inferred the proceedings have been brought for an ulterior purpose as a means of extending the applicant's period of lawful stay in Australia.
The applicants have any not filed any further documentation nor made any written submissions. However, the first applicant has attended Court and as he is the primary applicant he has addressed the Court, on my understanding, on behalf of all of the applicants. He takes issue with the findings of the Refugee Review Tribunal claiming that the Tribunal only considered points that were favourable to him, and he claims that the Tribunal did not consider any aspects of bias.
He sought to tender further documentary evidence going to his claim before the Refugee Review Tribunal being material that he has obtained relatively recently. I have indicated this Court does not take fresh evidence and in any event it is difficult to see how material that was not in existence at the time of the Tribunal hearing could be relevant to these proceedings.
The background to this matter is set out in detail in the submissions of the first respondent. The applicants arrived in Australia on
19th November 2001 and applied for protection (Class XA) visas on 12th December in that year. The delegate and the respondent refused those visas on 22nd July 2002. On 12th August 2002 the applicants applied for review of the delegate's decision of the Tribunal, however, the Tribunal affirmed the delegate's decision.
The application for judicial review made in the Federal Magistrates Court was heard by Barnes FM in the proceedings to which I have previously referred and on 2nd September 2005 and judgment was delivered that. The applicant, while conceding that the Federal Magistrate heard the case very clearly, also expressed some view that the Court was in some way displeased with his application.
No evidence of that appears from her Honour's comprehensive Reasons for Judgment. I note that paragraph 61 of the judgment, her Honour commented that the hearing commenced in July and was adjourned to enable the applicant to file a transcript of the Tribunal hearing.
Her Honour noted that the applicant did not, in fact, comply with the order of the Court to file that transcript.
The decision of her Honour noted that the applicant attended two Tribunal hearings that took place over two days, provided a considerable amount of country information and a number of written submissions of the Tribunal. Her Honour considered the Tribunal decision in commendable detail and noted claims made by the applicant at the hearing in the original application and the amended application.
Her Honour considered such claims as the Tribunal failed to take into account a relevant consideration that there was some evidence of bad faith in the way the Tribunal dealt with the information submitted by the applicant, that the Tribunal's non acceptance of documents submitted amounted to be bias; that the applicant had no resources to bring physical evidence to prove his claim; and the Tribunal gross disregard of all the evidence the applicant had submitted without providing any reason amounted to failing "capably making it neutral power." Her Honour considered all of these grounds including a ground, or a particular Tribunal satisfaction the applicant was not a refugee was not based upon reasoning which provided a rational or logical for this belief. Her Honour dealt with all of those grounds in detail and found no jurisdictional error. Her Honour dismissed the application with costs.
The applicant then sought leave to an extension of time in which to file and serve a notice of appeal against her Honour's judgment.
That application was heard by Jacobson J and dismissed on
29th November 2005.
The applicant subsequently applied to the Refugee Review Tribunal seeking a further review of the delegate's decision. I note from the decision of Driver FM in SNBQN & Ors v Minister for Immigration & Anor [2006] FMCA 718 at [1], that the decision of the Refugee Review Tribunal was made on 23rd March 2006, and the applicant asserted that he had been notified of it on 25th March 2006.
That decision that the applicant sought to have reviewed was a decision of the Refugee Review Tribunal that it lacked jurisdiction because the delegate's decision had already been reviewed by an earlier Tribunal, and the decision of that Tribunal had been found to be free from any jurisdictional error. His Honour dealt with the matter in an immediate show cause hearing and found that the RRT having validly completed its function on the first occasion was functus officio, there was no basis upon which the RRT could entertain the second review application.
His Honour concluded that there was no prospect of success and dismissed the application pursuant to s.44.12(1)(a) of the Federal Magistrates Court Rules 2001. The application was dismissed with costs.
This application then is the second application to review a decision of the Refugee Review Tribunal that has already been reviewed.
When that application of judicial review was dismissed the applicant sought an extension of time to appeal which was refused by a Judge of the Federal Court of Australia.
The question of res judicata immediately applies. I am asked by the first respondent to consider that the application is incompetent and it is pointed out that the applicants state in their application that they received notification of the first Tribunal decision, i.e., the Tribunal decision which is the subject of this application on 18th September 2003, which is the date it was handed down.
The applicant sought judicial review of that decision by an application filed in this Court on 15th October 2003, namely, the application heard by Barnes FM and it is submitted with some force that the applicants must have had actual notification of the first Tribunal by at least that date. In any event, it is applicant's own claim that they are notified within the time prescribed by s.477 of the Act and there is no evidence to show otherwise.
This application was made to the Court on 2nd April 2007, which was not within 28 days of notification of the decision, nor within the further 56 days within which the Court has discretion to extend that time as provided by s.447(2) of the Act. As the application is out of time I am satisfied that it is incompetent.
As to the question of res judicata I am referred to the decision of Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677, also BC v Minister for Immigration & Multicultural Affairs (2001) FCA 1669, (2001) 67 ALD 60, and on Appeal (2002) FCAFC 221. I am further referred to the decision in Re Ruddock ex parte; LX [2003] FCA 561.
The relevant principles are set out in the submission and I consider it is appropriate to state them in this decision:
(a) the doctrines of res judicata and issue estoppel apply to applications for judicial review;
(b) the doctrine of res judicata applies where the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it is merged and no longer has independent existence, whereas issue estoppel applies where, for the purpose of some other claim or cause of action, 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.
(c) in the case of res judicata, the question whether there is an identify between the earlier cause of action and the ones raised in the proceedings said to be the subject of the plea is to determined by matters of substance rather than the form of particular pleading or the way in which it is pleaded;
(d) if res judicata applies to the proceeding there is no discretion in the Court to allow the proceedings to continue;
(e) the Anshun principle provides that a litigate will not, without reasonable justification be allowed to raise in a later proceeding a challenge which properly belonged in an earlier proceeding and was not included in it unless special circumstances exist which warrant the Court declining to comply the principal.
(f) a powerful indicator that it was unreasonable for a litigant not to raise the challenge in the first proceedings, is that the remitted proceedings would result in a conflicting judgment;
(g) the consideration of conflicting judgment will not arise in circumstances where the ground relied on in the subsequent proceedings is one that was not available in the first proceedings.
Bearing in mind those principles, I consider the applicant's application in which it is claimed that the decision was received on 18th September 2003, the date it was handed down. I consider the grounds that are set out in the application. They differ somewhat from the grounds referred to in the applicant's affidavit, but it is the ground of the application that I consider to be relevant. They are:
(a) the Tribunal denied procedural fairness and in so doing made a jurisdictional error and error of law;
(b) the procedure required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision was not observed;
(c) the Tribunal ignored the merits of the review application. The Tribunal made its decision on the basis of unrelated and misinformed country information. The Tribunal made its decision without making investigation about previous persecution against me and my family;
(d) the Tribunal failed to take relevant consideration into account in exercising its power to determine the applicant's review application;
(e) the Tribunal is involved with jurisdictional error and it leads the incorrect interpretation of the applicable law;
(f) the Tribunal decision was unjust and it was made without taking into account the full gravity of the circumstance of the applicant's review application.
Those are the grounds I the application. In my view, those grounds although at times with somewhat different wording were all considered by Barnes FM in the original hearing. Her Honour dealt with all those grounds comprehensively and thoroughly and, in my view, there is no new ground to be argued in this application. In my view, the doctrine of res judicata applies.
It follows that this application is barred by the doctrines of res judicata and issue estoppel and it must be dismissed for that reason. It is quite clear that this application is an abuse of process. It is an attempt to re-litigate something that has already been litigated thoroughly and comprehensively in this Court and in the Federal Court. It is quite clear that this application is being brought purely as a means of extending a bridging visa or in some other way to attempt to prolong the applicants' stay in Australia after their recourse to the law has already been exhausted.
These proceedings are a scam and are an abuse of process. For that reason alone they ought to be dismissed. I will dismiss the application as incompetent and I will dismiss the application as an abuse of process.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 3 August 2007
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