SZBRS v Minister for Immigration
[2005] FMCA 1396
•16 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1396 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa. PRACTICE & PROCEDURE – Notice of motion – summary dismissal – abuse of process. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), ss. 39(b); 424A |
| Connelly & Director of Public Prosecutions (1964) appeal cases 1254 at [1361] Craig v South Australia (1995) 184 CLR 163 at [176] to [180] NADP v Minister for Immigration & Multicultural & Indigenous Affairs Port of Melbourne Authority & Anshun Pty Ltd (1981) 147 CLR 586 at [595] & [605] S635 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65 at [63] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [25] & [74] Somanadar v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1192 at [54] VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 Walton & Gardner (1993) 177 CLR 378 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36] to [39] |
| Applicant: | SZBRS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2215 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 August 2005 |
| Date of Last Submission: | 16 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Slattery |
| Counsel for the Respondent: | Mr Braham |
| Solicitors for the Respondent: | Ms Hanstein Blake Dawson Waldron |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Application is dismissed as an abuse of process.
That the Applicant is to pay the first Respondent’ costs fixed in the sum of $4,700.00.
The Applicant is restrained from commencing any further application for review of the decision of the Refugee Review Tribunal handed down on 7 November 2001 without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2215 of 2003
| SZBRS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By notice of motion which was filed on 11 August 2005 the respondent Minister for Immigration and Multicultural and Indigenous Affairs, moves the Court for orders in these terms:
The application be dismissed:
a) because the proceedings are barred by the principals of res judicata or issue estoppel;
b) because the proceedings are frivolous or vexatious; or
c) because the proceedings are an abuse of the Court's process.
The substantive application to which this notice of motion responds rises from a decision of the Refugee Review Tribunal which was made on 18th October 2001 and handed down on 7th November 2001.
The history of the matter since then is set out in the affidavit of Sharon Elizabeth Hanstein which was filed on 11th August 2005 in support of the notice of motion. On 27th November 2001 the applicant filed an application in the Federal Court of Australia seeking review of that decision of the Refugee Review Tribunal. The applicant was given the publication name or pseudonym of NACL for the purpose of those proceedings. The application came before Sackville J who dismissed that application on 1st May 2002.
On 20th May 2002 the applicant filed a notice of appeal from that decision. That appeal came before the Full Court of the Federal Court of Australia and on 26th November 2002 their Honours Branson, Finn and Downes JJ dismissed the appeal with costs. A copy of the reasons for judgment of the Full Court is also annexed to Ms Hanstein's affidavit.
Then on 20th December 2002 the applicant filed an application for special leave to appeal in the High Court of Australia. Whilst those proceedings were on foot, the applicant commenced these proceedings in the Federal Magistrates Court by dint of an application filed on
16th October 2003. Six days later, on 22nd October 2003, the applicant discontinued his application for special leave to appeal.
·At all relevant times during those proceedings the applicant was not legally represented. He has now obtained representation and Mr Slattery of counsel has appeared for him. The applicant has filed an amended application under s.39B of the Judiciary Act in respect of this decision that was handed down on 7th November 2001. He seeks orders in the nature of certiorari, orders of prohibition, and an order in the nature of mandamus. He sets out certain grounds –
· breach of the rules of procedural fairness,
· breach of the rules of natural justice,
· an exercise of a power that was so unreasonable that no reasonable decision maker could have exercised the power, and
· having taken irrelevant considerations into account.
The particulars have been set out in that amended application in some helpful detail.
For the respondent, who is the applicant in this notice of motion, it is argued that this present application seeks to agitate the same issues that were considered both by Sackville J, namely the Full Court of the Federal Court including whether the decision of the Tribunal was within jurisdiction. The submission is that that issue has already been determined against the applicant. This application is an application under s. 39B of the Judiciary Act, as indeed it must be if orders in that nature of mandamus are sought That indeed was the basis of the decision both of the Federal Court and of the Full Court.
For the Minister, Mr Braham of counsel has argued, that the application is an abuse of process. It should be dismissed with costs. He says that the only reasonable inference is that the present application has been made for no other purpose than to extend the applicant's bridging visa and delay his removal from Australia. In the alternative he submits that it is an abuse of process to re-litigate a matter that has already been determined. He refers to the decisions of Walton & Gardner (1993) 177 CLR 378 at 393, Connelly & Director of Public Prosecutions (1964) AC 1254 at 1361- 2, and VWZG & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018. It is also argued that the issues raised by the application have already been conclusively determined against the applicant and he is estopped from bringing this application or revisiting those issues by reason of res judicata or issue estoppel.
Counsel for the applicant in the substantive proceedings, Mr Slattery, in his written submissions has provided the Court with a very useful summary, not only of the issues in this case, but of principles relating to summary dismissal, res judicata, issue estoppel & Anshun estoppel. He refers to the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 595 and 605, and the more recent decision of Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA C242 at [36] to [39].
In Paragraph 9 of his submissions Mr Slattery refers to the claims that res judicata ought to apply because the cause of action in the previous proceedings was jurisdictional error and that the decision that is the subject of this application of judicial review has been previously adjudicated upon. He submits that the description of the cause of action in the previous proceedings is jurisdictional error may be inappropriate in the context of judicial review. He goes on to say that the cause of action might just as well be judicial review. He refers to categories set out in Craig v South Australia (1995) 184 CLR 163 at 176 -180 and queries as to whether res judicata is an appropriate plea in bar in the judicial review jurisdiction when regard is had for the policy underpinning the principle. He goes on to suggest that it is conceivable that a government could introduce legislation that goes beyond its powers and that people could be treated in an ultra vires manner until the High Court were to make such a declaration.
He submits that res judicata, if applied in this way, could facilitate the abuse of power by the legislature.
In dealing with issue of estoppel and Anshun estoppel, Mr Slattery raises the point that the concepts are not clear-cut and that there is not a clear delineation between the two. He points out that this matter relates to the life and liberty of the applicant, that the respondent is a Minister of the Commonwealth. He submits that it was reasonable not to rely on the ground that was now sought in the substantive application, especially bearing in mind the fact that the applicant was a self represented litigant.
He goes on to submit that in respect of an application that these proceedings are an abuse of process, being frivolous and vexatious, is a matter that is difficult to comprehend, and that it could be argued that the respondent minister has in fact brought this litigation upon himself. He takes issue with the inference that the applicant seeks to reapply for review merely to prolong his bridging visa and therefore to prolong his stay in Australia is heartless, given that the test for refugee status does not cover the field in relation to the forms of oppression experienced by refugee and asylum seekers.
He submits, although Mr Braham for the respondent minister denies, that the law has changed since the applicant first sought review.
He goes on to qualify that by saying that ultimate authority was brought to bear on the question of law for the first time since the question arose. It was not a case of High Court changes its position, but asserting it for the first time.
He submits also that it was not, the applicant's case is not a hopeless case, indeed there is a clear breach of s. 424A of the Migration Act and that this is an issue that should be litigated and he refers to the recent decision of SAAP v MIMIA [2005] HCA 24 and paragraphs 25 and 74 through to 77, 173 and 204 to 208 and 135 to 136.
I have had the benefit of listening to oral submissions by both counsel. Mr Braham for the respondent minister has drawn my attention to the decision of Sackville J being the primary decision where his Honour found no error in the decision of the Refugee Review Tribunal.
In particular he drew my attention to paragraph 5 of the decision where his Honour stated that since the applicant was unrepresented he proposed to deal with the matter on the basis that the applicant sought leave to amend his application to invoke the jurisdiction of the Court pursuant to s. 39B(1) of the Judiciary Act and that provision confers original jurisdiction on the Federal Court with respect to any matter in which a writ of mandamus or prohibition or injunction is sought against an officer or officers of the Commonwealth.
That course was not opposed and the proceedings continued on that basis in his Honour's decision. His Honour made the point that the reasons of the Refugee Review Tribunal included adverse findings as to the applicant's credibility, and that those findings of credibility were based on the evidence before the Tribunal including the applicant's own evidence and the Tribunal's assessment of the applicant as a witness.
My attention was also drawn to the decision of the Full Court in this matter where their Honours found no error in the decision of the primary judge at paragraph 10 said:
Nothing said by the appellant who appeared without legal representation but with the assistance of an interpreter has raised any doubt as to the correctness of the decision of the primary judge. We have ourselves been unable to identify any error in the approach or the conclusion of the primary judge. His Honour determined the application before him without reference to s. 474 of the Act. We agree with his Honour that even absent the privative clause the appellant's claim for judicial review of the Tribunal's decision is bound to fail. The Privative clause merely made that outcome more certain.
In these proceedings Mr Braham has drawn my attention to the fact that proceedings before me and indeed the original proceedings before the Honourable Sackville J, whilst they are commenced in two different Courts exercising Federal jurisdiction, were each proceedings of a similar nature. They were both proceedings under s.39B of the Judiciary Act. In particular I have been referred to two decisions: the first of which is a recent decision of the Honourable Weinberg J in the Federal Court of Australia in VWZG v MIMIA (supra), this is a decision that was handed down on 21 July 2005. I have read his Honour's decision with great interest. It is in my view a decision that is very much on all fours with the situation and the matter before me today.
It is a decision on a notice of motion to dismiss an application on the ground that the application constituted an abuse of process of the Court; and further in the alternative, that the application was bound by the document res judicata, and or the applicant was stopped from bringing those proceedings.
The history of the litigation in that case was similar to the history of the litigation here. The applicant filed an application for judicial review in the decision of the Refugee Review Tribunal in the Federal Court and that Court dismissed the application. The applicant then appealed against that decision to the Full Court and the Full Court dismissed that appeal.
The applicant then filed an application for special leave to appeal in the High Court and the following year filed a notice of discontinuance.
On the day before he filed the notice of discontinuance in the High Court, the applicant in that case filed an application for review of the Sydney Registry of the Federal Magistrates Court, on 11 November
Raphael FM dismissed that application as incompetent.
The applicant then filed an application for leave to appeal from that judgment, but then discontinued those proceedings. He then filed an application for an order nisi in the High Court and discontinued those proceedings.
The applicant then commenced the proceedings that were before the Honourable Weinberg J.
The proceedings before me do not involve as many applications or appeals or as many discontinuances as the fact situation in VWZG v MIMIA (supra). To my mind however, the process is the same and the tactics adopted by the substantive applicant are the same.
At paragraph 10 of his decision Weinberg J, said:
In any event the application warrants summary dismissal.
The judgment and orders of Moore J in NADP were final and resolved a controversy between the applicant and the Minister. Accordingly the document Res Judicata applies to the present application because in substance it seeks review of the same RRT decision that was the subject of the applicant's previous judicial review application. The facts giving rise to the right to review others are the same and the substance of the proceedings are the same. The right to relief in each case is informed by the same principals of substantive law and the proceedings do not differ in any material respect and Moore J dismissed the application in NADP, "the applicant's rights in respect of those grounds merged to the judgment arising from the dismissal orders".
See Somanadar v MIMIA [2000] FCA 1192 at 54.
At paragraph 11, his Honour went on to say:
The doctrine of Res Judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment. (See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612, 613 per Brennan J) For that reason the Court has no discretion to allow the matter to continue.
His Honour went on to say at paragraph 13:
Finally, the applicant will be prevented by the doctrine of abuse of process from litigating questions that have already been determined.
In Walton & Gardener (1993) 177 CLR 378 Mason CJ, Dean and Dawson JJ said at 393:
Yet again proceedings before a Court should be stayed as an abuse of process if notwithstanding the circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
In my view the decision of Weinberg J in VWZG v MIMIA (supra) whilst a decision at first instance, and not expressly binding upon this Court is persuasive. The principal of judicial comity would dictate that I would be inclined to follow that decision unless I were persuaded that it had been wrongly decided. There is nothing before me, and indeed it has not been argued that VWZG v MIMIA (supra) has been wrongly decided. As I said, I find it a persuasive decision and my view is that it is a decision that I should follow. I have also been referred to the decision of the Full Court of the Federal Court in S635 of 2003 & MIMIA [2005] FCAFC 65, at paragraph 63 their Honours say:
The principal of res judicata does not however require that the decision made be correct in fact or law. It remains binding upon the parties unless and until it is upset on appeal. nor does it matter that the decision is overruled in another case between different parties.
In my view this is clearly a matter of res judicata. The substance of the applications are the same, it matters not that a different form of jurisdictional error may be argued. these proceedings before me, like the original proceedings before Sackville J are proceedings for judicial review of the one decision of the Refugee Review Tribunal handed down on 7th November 2001. In each case the proceedings were proceedings under s.39B of the Judiciary Act and seeking in effect the same relief.
In the written submissions by counsel for the applicant prepared by
Mr Slattery of counsel, he stated correctly in my view, that res judicata constitutes a complete bar to a subsequent suit of the same cause of action. In my view res judicata does apply.
In my view the application is an abuse of process and as referred to in paragraph 14 of Weinberg J’s decision in VWZG (supra) the repeated bringing of applications for judicial review of the same Tribunal decision is unjustifiable, vexatious and brings the administration of justice into disrepute. There is an underlying public interest in the finality of litigation.
With respect I adopt Weinberg J’s words as my own.
There are two applications, one is that the applicant should pay the respondents costs on an indemnity basis and a fixed sum of $5,000.00 is sought. I note that in VWZG v MIMIA (supra), his Honour Weinberg J declined to exercise his discretion that costs should be ordered on an indemnity basis, but order costs on a party and party view.
The difference there was that the applicant was unrepresented and that applicant plainly had little idea of what he was doing, as his Honour said. His Honour said that it was not normally the practice to order indemnity costs in such cases, though it must be a matter to be determined in light of the particular facts of each case.
In my view in this registry of the Federal Magistrates Court, indemnity costs are more frequently ordered, and indeed it is more the practice of this Court to do it and in my view this is such a case. I note that the sum of $5,000.00 is sought, I am not prepared to go that high.
The other order that is sought, is that the Court should make an order that no further application by the applicant to review this decision should be filed without leave of the Court. His Honour in the case of VWZG (supra) said:
While there is a basis for such an order I am not disposed to make an order in those terms at least in the absence of hearing from the applicant. No doubt any attempt by the applicant to initiate further proceedings in relation to that RRT decision will be viewed with less charity and may lead to more dire consequences.
The difference that I see here is that the applicant has been ably represented by counsel and I am quite satisfied that his counsel would certainly dissuade him from bringing any inappropriate proceedings and I expect that of counsel, just as I expect that of all counsel.
In my view it is certainly the practice in this registry of the Court that where an application has been found as an abuse of process that an order should be made that there should be no further primary application to review the same decision without leave of the Court. This does not of course affect, any right to appeal against the decision of this Court, and those rights remain open.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 September 2005
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