SZCPK v Minister for Immigration
[2008] FMCA 276
•28 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 276 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where Tribunal decision the subject of prior judicial review – summary dismissal proceedings. |
| Migration Act 1958 (Cth) s.424A Federal Magistrates Court Rules 2001 (Cth) rr.13.10, 13.11 |
| Attorney-General Victoria v Wentworth (1988) 14 NSWLR 481 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 NALE v Minister for Immigration and Multicultural and Indigenous [2003] FMCA 366 Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 S 442/2002 v Minister for Immigration and Multicultural and Indigenous [2003] FCA 1240 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZASP v Minister for Immigration and Citizenship [2005] FCA 771 SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268 SZCPK v Minister for Immigration and Multicultural Affairs [2006] FMCA 410 SZCPK v Minister for Immigration and Multicultural Affairs [2006] FCA 1657 SZCPK v Minister for Immigration and Multicultural Affairs [2007] HCTrans 569 Walton v Gardiner (1993) 177 CLR 378 White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 |
| Applicant: | SZCPK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3318 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.
The applicant pay the costs of the first respondent on an indemnity basis fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3318 of 2007
| SZCPK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 motion filed by the first respondent on 16 November 2007 seeking that an application filed on 26 October 2007 be dismissed pursuant to r.13.10 (a), (b) or (c) of the Federal Magistrates Court Rules. The first respondent also contends that the applicant was estopped from bringing the proceedings on the basis of res judicata and issue estoppel and that the doctrine of Anshun estoppel applied and there were no special circumstances to justify its non-application.
The application of 26 October 2007 seeks review of a decision of the Refugee Review Tribunal dated 4 December 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
However, that decision of the Refugee Review Tribunal was considered by this Court on a previous occasion. (See SZCPK v Minister for Immigration and Multicultural Affairs [2006] FMCA 410). The applicant was represented by counsel. The judgment of Raphael FM reveals a full consideration of each of the arguments raised by the applicant in relation to the Tribunal decision. The application was dismissed on 17 March 2006.
The applicant appealed to the Federal Court. On 1 December 2006 Edmonds J dismissed the appeal. (SZCPK v Minister for Immigration and Multicultural Affairs [2006] FCA 1657). In the Federal Court the applicant was represented by counsel. It is apparent from the judgment of Edmonds J that the transcript of the Tribunal hearing was before him. His Honour considered at length not only the judgment of Raphael FM but also an amended notice of appeal which raised wider concerns about the Tribunal decision, including allegations of apprehended bias and unreasonableness.
Each of these hearings and judgments post-dated the 18 May 2005 decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294. I refer to that case because one of the arguments raised by the applicant in these proceedings is, somewhat confusingly, a suggestion that the decision in SAAP had not been made at the time of his prior proceedings. He was not able to explain to me the basis for this contention in his submissions today.
After the Federal Court dismissed the appeal the applicant sought special leave to appeal to the High Court. It is apparent that while initially dismissed his application was reinstated. However ultimately on 3 October 2007 his application for special leave to appeal was dismissed by Gummow and Kiefel JJ (see SZCPK v Minister for Immigration and Multicultural Affairs [2007] HCTrans 569). Their Honours referred to contentions that had been rejected by Edmonds J in relation to a reasonable apprehension of bias and findings of fact by the Tribunal and also addressed an argument the applicant raised in relation to s.424A of the Migration Act1958 (Cth).
However their Honours stated that they saw no reason to doubt the correctness of the decision appealed from and found that the applicant did not have sufficient prospects of success on the additional question sought to be raised to warrant a grant of special leave. In that respect I note that such a decision appears to address any issue that might be raised in relation to s.424A on the basis of SAAP.
Twenty-three days after the High Court dismissed the application for special leave to appeal the applicant commenced the present proceedings in this Court. It is apparent from his application that he seeks review of the same Tribunal decision considered in the prior litigation. There is no suggestion that there is any other Tribunal decision in issue.
The grounds in the application are generally expressed. The first includes that the Tribunal exceeded its jurisdiction, constructively failed to exercise jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to investigate his genuine claims. It is apparent that that argument, albeit expressed in a different manner, was considered at length in the prior proceedings, in particular by the Federal Court. Insofar as it is a contention that the Tribunal did not consider the applicant’s claims, such a contention was rejected by Federal Magistrate Raphael (see SZCPK at [5]).
The second ground is not in fact a ground. It is a contention that the present application is not vexatious and not an abuse of process, perhaps made in anticipation that the respondent might seek summary dismissal. Nothing was said by the applicant today to support this contention.
The third ground is that the Tribunal applied the wrong test by requiring independent evidence of the facts before it would accept the claim, that it placed too high an onus of proof on the applicant and failed to give him the benefit of the doubt. This ground is not particularised. The generally expressed concerns expressed therein were encompassed in the complete review conducted in these proceedings by the Federal Magistrates Court and Federal Court.
The supporting affidavit filed by the applicant at the time of commencement of these proceedings also purports to raise grounds of review, reiterating that the Tribunal exceeded its jurisdiction, failed to exercise its jurisdiction or denied the applicant procedural fairness. Such issues were considered in relation to a claim of apprehended bias (in particular by the Federal Court).
The affidavit also contends that the applicant had not had the opportunity to make a claim based on the decision of the High Court in SAAP in relation to s.424A. There is no basis for such contention given that the decision in SAAP preceded the original hearing in the Federal Magistrates Court and that s.424A was raised in the application for special leave to appeal but was not regarded by Gummow and Kiefel JJ as such as to warrant the grant of special leave.
This matter has been the subject of proceedings in the Federal Magistrates Court and the Federal Court and was the subject of the application for special leave to the High Court. The grounds raised by the applicant (who had the assistance of legal representation on those past occasions) did not succeed. Nothing said by the applicant today indicates that there is any other ground that is in any way arguable. I note that the applicant sought to tender some documents in relation to the situation in Bangladesh that post-dated the Tribunal decision. He was not able to explain how those would assist him to establish a jurisdictional error on the part of the Tribunal on the basis of the material before it at the time of its decision.
As I indicated to the applicant, if circumstances have changed in his home country that may be a matter he can raise with the Minister for Immigration. It is not such as to establish that he has any reasonable prospects of success. Nor is it otherwise such as to warrant this matter proceeding to a final hearing.
This application is, in effect, an attempt to re-agitate the same issues as were dealt with previously. In all the circumstances I am persuaded, for the reasons given by the first respondent in written submissions, that the application ought to be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings. (See Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 and; SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268).
The present proceedings have been previously heard and lost. (See S 442/2002 v Minister for Immigration and Multicultural and Indigenous [2003] FCA 1240 at [29]). To the extent that any different argument is now sought to be raised it is one that should have been put, if it was to be put, in the prior proceedings. Having regard to the nature of the applicant's litigation history and the absence of any explanation, other than the applicant's discontent with the fairness of the Tribunal decision, I consider it is open to the Court in all the circumstances of this case to draw an inference that the applicant has filed the present generally expressed application for the collateral purpose of extending the period of his stay in Australia (see NALE v Minister for Immigration [2003] FMCA 366 at [12]) and that the present proceedings are an abuse of process. The repeated bringing of similar applications for judicial review in relation to the same Tribunal decision brings the administration of justice into disrepute. There is an underlying public interest in the finality of litigation. (See Walton v Gardiner (1993) 177 CLR 378 at 393). These proceedings ought to be summarily dismissed to avoid further public expense in defending a matter which has already occupied the time and resources of the Federal Magistrates Court, the Federal Court and the High Court.
It is also contended by the first respondent that these proceedings are frivolous and vexatious. Apart from a denial of this in the initial application this issue was not addressed by the applicant. The application contains generally expressed grounds which make no attempt to identify any unique aspect of the decision not previously dealt with. The affidavit seeks to rely on an incomprehensible ground based on an argument that a High Court decision (in SAAP) had not been made which had, in fact, been made at the time of the prior consideration of the applicant's case by this Court. I consider in all the circumstances that the present proceedings can be characterised as frivolous and vexatious, albeit that this is not a conclusion that I draw readily. (Attorney-General Victoria v Wentworth (1988) 14 NSWLR 481).
The first respondent also relied on res judicata, issue estoppel and Anchun estoppel arguments. Although it is not necessary for me to make specific findings in those matters, given that I am prepared to dismiss this application under r.13.10, for the sake of completeness I note that the decision is one to which the doctrine of res judicata applies as a complete bar to the application. The same Tribunal decision is in issue that was the subject of the previous review applications, the substratum of facts and the substance of the proceedings are the same. The applicant seeks the same relief informed by the same substantive law principles.
Issue estoppel is also applicable, as the issues raised in this application have previously been put in issue and determined between the parties. Even if that is not so because of some slight difference in the wording of the present application or there is not a strict res judicata, the proceedings are barred by the operation of the doctrine of Anshun estoppel, as the matters put forward in the current proceedings (including any argument based on SAAP) could have been put in the earlier proceedings. (See Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at [602]). Anshun estoppel 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. This is such a case and the applicant has not established any special circumstances that would justify the Court exercising its discretion not to apply Anshun estoppel principles.
On the basis of the application's litigation history and the unmeritorious nature of this application the first respondent seeks costs on an indemnity basis in the sum of $2,700. The applicant had nothing to say in relation to this, except that he was ready to pay those costs. In light of the applicant's litigation history and the unmeritorious nature of this application I consider that it is appropriate in the particular circumstances of this case to make an order for costs on an indemnity basis consistent with the principles discussed by Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232 – 234.
I have also been asked to make an order that no further application by the applicant to review the delegate's or the Tribunal's decision be accepted for filing except with leave of the Court. I take this to be an application relying on the power of the Court under r.13.11 of the Federal Magistrates Courts Rules 2001. I note that concern has been expressed on occasion, including by individual Judges of the Federal Court, about the efficacy of such orders (see SZASP v Minister for Immigration and Citizenship [2005] FCA 771 at [24] per Moore J).
The difficulty that I face in relation to such an order is that the relevant provision of r.13.11 would seem in this instance to be r.13.11(3): “If a person … habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person … the Court may …” make an order of the nature sought. However it appears that that this is “only” the second time this applicant has instituted proceedings in this Court against the respondents. I am not satisfied that the fact that the applicant pursued his prior litigation through this Court, the Federal Court and the High Court and then commenced these proceedings can be characterised as “habitually and persistently” instituting vexatious proceedings in this Court within r.13.11(1) or that r.13.11(1) applies. On the material before me I am not persuaded that it is appropriate to make the order sought. It might be otherwise were the applicant to seek to initiate further proceedings in this Court in relation to this Tribunal decision.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 March 2008
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