SZDEG v Minister for Immigration - [2005] FMCA 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDEG v MINISTER FOR IMMIGRATION

[2005] FMCA 145

MIGRATION – Application by respondent Minister for summary dismissal – where review of RRT decision already carried out by Federal Court – where applicant did not appeal this decision instead he joined the Muin & Lie class action – where application remitted to Federal Court and dismissed – where applicant then filed application for review in Federal Magistrates Court – whether doctrine of Anshun estoppel applies – whether the grounds for review seeking to be raised by the applicant ought to have been part of the earlier Federal Court proceedings – whether the current application is an abuse of process.

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
SZECW v The Minister [2004] FMCA 786
Walton v Gardiner (1993) 177 CLR 378
Applicant A321 of 2002 v The Minister [2004] FCA 306
SZBJM v The Minister [2004] FCA 404
M162 of 2002v The Minister [2003] FCA 1146
Hassen v The Minister [2003] FCA 1036
Daniel v The Minister [2004] FCA 21

Applicant:

SZDEG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 951 of 2004

Delivered on:

11 February 2005

Delivered at:

Sydney

Hearing date:

11 February 2005

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Substantive proceedings dismissed.
Applicant to pay the respondent's costs assessed in the sum of $2,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 951 of 2004

SZDEG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These are proceedings brought by the respondent Minister for the dismissal of an application for judicial review of a decision of the Refugee Review Tribunal made on 1 February 2000. The Minister's grounds for seeking summary dismissal are those based upon the doctrine of Anshun estoppel and/or abuse of process of the court. The Minister originally proposed to argue that there was an estoppel by way of res judicata but this has been abandoned.
The applicant is a citizen of Nepal. He first arrived in this country on a student visa on 7 June 1996. He did not comply with the terms of that visa and was placed into immigration detention from where, on 3 June 1999, he made an application for a protection visa. The application was declined by a delegate of the Minister and the delegate's decision was supported by the Refugee Review Tribunal who came to its decision on 2 July 1999. That decision was overturned and the matter was sent back to the Tribunal for reconsideration. It is the second decision which the applicant to the substantive proceedings seeks to review.
The difficulty which the applicant faces is that on 3 February 2000 he applied to the Federal Court for review of the same decision and on

24 March 2000 the application was dismissed by Emmett J after what appears to have been a hearing. His Honour's judgment is found annexed to an affidavit of Patrick David Reynolds dated 11 October 2004 commencing at page 37. This application was made under s.476 of the Act as it then was.
The applicant appealed against the decision of Emmett J on 28 March 2000 but on 3 May he joined the High Court proceedings S89/1999 known as the Muin & Lie class action and discontinued his appeal to the Full Federal Court. The applicant was the subject of orders relating to the filing of applications for an order nisi following the decision in the Muin & Lie class action which deadline he did not comply with. However, he explained this and on 28 November 2003 his application was remitted to the Federal Court where it was again heard by Emmett J. His Honour ordered that the application be refused on 9 February 2004.
On 4 March 2004 the applicant made an application to the respondent under s.417 of the Migration Act. On 1 April 2004 he filed proceedings in this court and on 20 April 2004 he withdrew his s.417 application. On 6 September 2004 he filed an amended application. It is in respect of this amended application that the orders are sought.
In the amended grounds of application the applicant claims the Tribunal did not consider all of his claims in making its decision and indicates in the particulars that the Tribunal failed to address his claims based upon his membership of a social group. That is an error of law which was capable of being dealt with under s.476(1)(e) or s.476(3)(e) of the Act as it then was. I am of the view that the principles discussed in Anshun will apply: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589.
The second ground raised by the applicant, although it contains the number 3, is a denial of natural of justice. Mr Reynolds in his very helpful written submissions says in respect of this:
“Ground two pleads denial of natural justice. Although this is excluded by s. 476(2)(a), the Applicant relies on the particulars relating to ground one and, as submitted above, these matters could have been reasonably raised under sections 476(1)(e) or 476(3)(e).”
This is a neat way of putting the matter and it may be correct. But I would prefer to deal with it on the basis that a claim under the Muin & Lie class action is a claim of breach of natural justice. The applicant did not raise that in his Muin & Lie claims, which he allowed in the end to be dismissed, and therefore I accept that the principle of Anshun estoppel would apply.
The third ground is that the Tribunal did not take into account relevant considerations. It repeats the failure to address his claims based upon membership of the social group with which I have already dealt. The second particular is an argument with the Tribunal as to its acceptance, or in this case non-acceptance, of some evidence. That is a matter which goes to the merits of the decision and is not capable of grounding an application for review. The third particular is an explanation of why the applicant did not apply immediately for a protection visa. It was raised by the applicant because the Tribunal came to its conclusions about the genuineness of his alleged fear of persecution taking into account the fact that he did not apply for a protection visa until he was about to be deported from the country.
The fourth ground pleads unreasonableness. As Mr Reynolds says, although this is excluded by s.476(2)(b), the applicant again relies on his previous particulars which could have been raised under 476(1)(e) and 476(3)(e). But the real vice of the ground is that it says:
“Tribunal failed to make a decision in accordance with the merits of my claim.”
That is a request for a rehearing of the matter on the merits and such a request this court cannot deal with.
It follows from what I have said above that I accept Mr Reynolds' argument on behalf of the Minister that this is a case like that of SZECW v The Minister [2004] FMCA 786, in which I discussed these various grounds for dismissal in some considerable detail, where the principle of Anshun estoppel would apply. As in SZECW I can see no special circumstances in this case to justify an abandonment of the Anshun doctrine. In fact this case has less merit than SZECW because this applicant, unlike that one, did have a full hearing before Emmett J.
The Minister also argues that the applicant's proceedings in this court constitute an abuse of process because he is attempting to re-litigate a matter which he could have made the subject of an appeal to the Full Bench of the Federal Court some years ago. In support of that view, Mr Reynolds has referred me to Walton v Gardiner (1993) 177 CLR 378 at 393 where Mason CJ, Deane and Dawson JJ stated:
“…proceedings before a court should be stayed as an abuse of process if, notwithstanding that 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 had already been disposed of by earlier proceedings.”
I also note the remarks of Wilcox J in Applicant A321 of 2002 v The Minister [2004] FCA 306 at [18] to [19] and of Madgwick J in SZBJM v The Minister [2004] FCA 404 [29] to [30]. I also take into account the views expressed by Goldberg J in M162 of 2002 v The Minister [2003] FCA 1146 at [22] where his Honour said:
“The difficulty with that submission is that the active steps which they took were predicated on the basis that they were accepting the correctness and finality of the RRT decision. Although they said that they did not make any deliberate decision to accept the RRT’s decision as correct, they requested the Minister on

21 November 1996 that the Minister exercise his discretion to substitute a more favourable decision under s. 417 of the Act for the decision of the RRT is only explicable on the basis that the applicants were not challenging the finality of the RRT decision.”
Similar views are expressed by Heerey J in Hassen v The Minister [2003] FCA 1036 and by Goldberg J in Daniel v The Minister [2004] FCA 21 where his Honour says at [14]:
“This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the tribunal’s decision was correct and that he did not intend to challenge that decision further in the court. A similar approach has been taken in a number of cases in this court: Applicant A2/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576; BC200302902; Re Batuwantudawa [2003] FCA 684; BC200303600; Mudiyanselage v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 823; BC200304346; Applicant M29/2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266; BC200306597; Applicant VUAD/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331; BC200306996 at [16]–[20].”
I am, therefore, of the view that if I am incorrect in my opinion concerning Anshun, the claim to re-litigate the same application for relief is an abuse of process within the meaning of that phrase discussed by Mason, Deane and Dawson JJ in Walton v Gardiner. The applicant here also applied to the Minister under s.417 of the Act and, I believe, cannot now be heard to challenge the validity of the Tribunal’s decision.
The Minister's application must be accepted and the substantive proceedings dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $2,750.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 21 February 2005