SZDCF v Minister for Immigration
[2007] FMCA 1391
•15 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1391 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – res judicata – issue estoppel – Anshun estoppel – proceedings frivolous, vexatious and an abuse of process. |
| Federal Magistrates Court Rules 2001, rr.13.10, 44.12 |
| Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 |
| Applicant: | SZDCF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1874 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 August 2007 |
| Date of Last Submission: | 15 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.13.10 of the Rules of the Court, the proceedings be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1874 of 2007
| SZDCF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application dated 15 June 2007 the applicant seeks review of a decision of the Refugee Review Tribunal which is expressed by the applicant to have been dated 12 February 2004 and to have been received by him on 4 March 2004. Annexed to the applicant's affidavit sworn on 15 June 2007 is a copy of the Tribunal's decision expressed to have been made on 12 February 2004 and handed down on 4 March 2004.
The applicant submits in his written submissions that there are special circumstances justifying, in this case, the “non-application of the doctrine of Anshun estoppel” and the applicant has also submitted that he ought previously to have been able to have legal representation in the proceedings before this Court.
In his affidavit sworn 15 June 2007 at para.11 the applicant deposes that previously he was not able to present his case before the Courts through a legal representative and that if legal advice is available to him the outcome might be different. This evidence and these submissions reflect the fact that this is not the first occasion on which the applicant has sought judicial review of the Tribunal's decision.
In his response, the first respondent says that:
a)the Court has no jurisdiction to entertain this application because it has been brought out of time;
b)the applicant has previously instituted judicial review proceedings in relation to the Tribunal's decision in which the relevant issues have already been decided;
c)there is issue estoppel including Anshun estoppel (Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589); and
d)the applicant has no reasonable prospects of success, the proceedings are frivolous or vexatious and are an abuse of process.
Since the Minister's response was filed on 21 June 2007 the Full Court of the Federal Court has delivered its judgment in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 and, as a result, the first respondent no longer presses that part of his response where it was asserted that these proceedings were brought out of time.
The matter is currently before the Court on the applicant's application that the respondents show cause why relief should not be granted to the applicant. An order that the respondents show cause will not be made if the applicant does not have an arguable case. Relevant to a consideration of whether the applicant has an arguable case is the chronology of events arising out of the applicant's application for a protection visa. I set out those events as follows:
a)the delegate made the original decision on 14 November 2003;
b)the Tribunal made its decision on 12 February 2004 and handed down its decision on 4 March 2004;
c)the applicant sought judicial review of that decision by bringing proceedings in this Court and Emmett FM dismissed the applicant's application on 22 February 2006;
d)the applicant appealed her Honour's judgment to the Federal Court where, on 11 August 2006, Dowsett J dismissed the applicant's appeal;
e)the applicant pursued his application to the High Court where he sought special leave to appeal, which application was dismissed on 23 May 2007; and
f)on 15 June 2007 these proceedings were commenced.
The matters raised by the applicant in these proceedings are matters which were or could have been raised when the applicant was before the Court previously in relation to the Tribunal's decision. Although the applicant says that special circumstances apply to him by reason of which Anshun estoppel should not apply in these proceedings, nothing has been put by the applicant, either in written submissions or orally today, which indicates why the applicant would not be estopped from bringing these proceedings. The fact that the applicant did not have legal representation when previously before the Court is not a basis upon which the Tribunal's decision may be set aside. Nor is it a basis to invalidate the previous proceedings which the applicant brought.
The oral arguments for the applicant today were largely based on the merits of his application for a protection visa which are not matters which are proper to be entertained on an application for judicial review. Even had this matter not previously been decided by this Court and the Federal Court, it would not have been a submission which would have grounded judicial review had the matter been raised initially in this Court.
The applicant's application to set aside the Tribunal's decision has already been decided by this Court. His appeal from that decision has been dismissed and the High Court has refused special leave to appeal from that decision.
It has been submitted that the applicant does not have an arguable case. The authorities show that an application should not be dismissed on that basis unless the lack of a cause of action is clearly demonstrated or the claim is groundless or there is a high degree of certainty about the outcome. In this case it is clear that the applicant's application is certain to fail because the matter has previously been decided and he is estopped from raising matters which he did or could have raised previously and which have been decided or could have been decided in the earlier proceedings.
The Minister has submitted that the Court might dismiss the application under r.44.12 on the basis that the applicant does not have an arguable case or pursuant to r.13.10 on the grounds that the applicant has no reasonable prospects of successfully prosecuting the proceeding and that the proceeding is frivolous, vexatious and an abuse of process.
The circumstances of this case are that the proceedings are not merely hopeless but are vexatious and an abuse of the process of the Court. For that reason, I propose to dismiss the application pursuant to r.13.10.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 October 2007
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