SZDFO v Minister for Immigration (No.2)
[2005] FMCA 1935
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDFO v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 1935 |
| MIGRATION – Application for summary dismissal – prior proceedings – estoppel – abuse of process. |
| Migration Act 1958, s Federal Magistrates Court Rules 2001, rr.13.10, 13.11 Federal Court Rules 1979, o.32 r.2 |
| SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 391 Somander v Minister for Immigration & Multicultural Affairs (2001) 78 ALR 677 A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 722 Walton v Gardiner (1993) 177 CLR 378 SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96 |
| Applicant: | SZDFO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3161 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 16 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed on the basis that:
(a)the applicant is estopped from bringing the proceedings; and in the alternative,
(b)the proceedings amount to an abuse of the court's process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
That the applicant pay the costs of the first respondent set in the amount of $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3161 of 2005
| SZDFO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of notice of motion filed by the first respondent on 17 November 2005, seeking that the applicant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which was filed on 28 October 2005 be dismissed on the grounds that the applicant is estopped from bringing the proceedings, or that the proceedings amount to an abuse of the court's process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
There is a relatively lengthy background to these proceedings. The Tribunal decision in issue is a decision made on 21 July 1998 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. On 17 August 1998 the applicant sought review of that decision in the Federal Court of Australia. On 3 November 1998 Hely J dismissed that application pursuant to Order 32 Rule 2 of the Federal Court Rules 1979, as the applicant did not attend the hearing. No application was made under Order 35 Rule 7 to have that order set aside.
On 6 April 2004 the applicant filed an application under section 39B of the Judiciary Act 1903 in this Court seeking review of the same Tribunal decision. The grounds in the application were expressed generally to be a lack of satisfaction with the decision, that the Migration Act 1958 (C’th) was not being observed properly, that the applicant was deprived of natural justice and that there were significant errors of law. On 11 June 2004 Federal Magistrate Raphael dismissed the application on the basis that he was unable to find any grounds upon which he could say that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions.
I observe in passing that Federal Magistrate Raphael noted in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 391 at [11] that he “would have been quite happy to dismiss the matter as an abuse of process, given the judgment of Hely J and the failure of the applicant to take any further steps to set that aside. However, it is probably best that I deal with the case on the merits, so that the applicant could not complain in the future that he has never had a full hearing”. It was on the basis of such a full hearing that his Honour dismissed the application with costs.
On 29 June 2004 a notice of appeal from that decision was filed by the applicant in the Federal Court of Australia. On 9 September 2004 Allsop J dismissed the appeal with costs. In the course of his judgment, his Honour noted the generality of the grounds of appeal and that the submissions the appellant had provided did not identify, or begin to identify, any possible jurisdictional error. His Honour nonetheless considered the Tribunal decision at some length and agreed with the conclusion of Federal Magistrate Raphael that no jurisdictional error could be identified.
On 5 November 2004 an application for special leave to appeal from the judgment and orders of the Federal Court was filed in the High Court of Australia in the name of the applicant. On 1 September 2005 that application was deemed abandoned by the High Court for failure to comply with Rule 41 of the High Court Rules. The applicant then, as I have indicated, filed the further application for judicial review in this Court.
The ground that the applicant relies on are generally expressed grounds of bad faith, lack of natural justice, denial of the evidentiary proof of the claim, not reflecting the material facts, a preset decision, mixing up many facts, ignoring facts and a lack of inquiry. The applicant has filed written submissions which repeat his claim to be a refugee (and in fact are expressed in terms which would seem to be more relevant to an appeal in that they contend that the honourable judge failed to find error).
By notice of motion the first respondent contends that the applicant is estopped or that the proceedings are an abuse of process. The written submissions also address res judicata. The principles of res judicata apply where an applicant seeks to relitigate the same claims for relief that were raised in earlier proceedings. As Merkel J stated in Somander v Minister for Immigration & Multicultural Affairs(2001) 78 ALR 677 at 53,:
The identity of the claims for relief or causes of action in question is to be determined by matters of substance rather than the form of the particular proceeding, or the way in which it is pleaded.
In applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306, Wilcox J suggested that the central question is whether the second application seeks to relitigate the same claim for relief as the earlier proceeding. His Honour stated at [18]:
It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced.
In this instance the applicant seeks review of the same Tribunal decision and seeks to relitigate essentially the same claims for relief. The substratum of facts giving rise to the rights of review is the same in each instance and on this basis res judicata would apply. Further, issue estoppel arises when an issue of fact or law raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding (Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 722 at [44]). In this instance Federal Magistrate Raphael was unable to find a jurisdictional error in the Tribunal decision on any ground. Allsop J considered not only the decision of Federal Magistrate Raphael, but also the decision of the Tribunal in some detail and agreed with the Federal Magistrate that no jurisdictional error could be identified. His Honour's order was a final order that resolved the controversy between the applicant and the first respondent. The cause of action that was dismissed was in substance the same as that which the applicant now seeks to raise. The proceedings depend upon the same facts, being that a decision was made by the Tribunal on 21 July 1998 to affirm a decision of a delegate of the first respondent not to grant the applicant a protection visa. In these circumstances the applicant is estopped from the proceedings which he now wishes to bring.
Moreover, I am satisfied that the doctrine of Anshun estoppel applies and should be applied to preclude the applicant from raising any of the generally expressed grounds that he now seeks to rely on in his present application. On the material before me, insofar as any of the grounds now relied on differ from those raised previously, it was open to the applicant, to the extent that he did not do so, to have raised in the prior proceedings against the respondent any or all of the generally expressed grounds that he now raises in his application for review. There is nothing raised and nothing to suggest that special circumstances are present which would enliven the discretion to refrain from the application of the Anshun estoppel doctrine which precludes the applicant from now relying on arguments that could have been raised in the prior proceedings.
In the alternative, even if I am wrong in what I have said, I am satisfied that the proceedings should be dismissed as an abuse of process. The prior decisions of this Court and the Federal Court upheld the decision of the Tribunal in which no error was found. Those decisions followed much earlier proceedings where the applicant had failed to appear, yet where there was no application to set aside the decision dismissing the application for review.
I am satisfied in this instance that the repeated brining of similar applications and the attempt to relitigate the same application for relief is an abuse of process within the meaning of the term as discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 392-393. Also see SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96 at [9].
The applicant is seeking to relitigate the same Tribunal decision that was dealt with initially by Hely J, then by Federal Magistrate Raphael and on appeal by Allsop J and in which his application for leave to appeal to the High Court was deemed abandoned. This has taken place over a considerable period of time. The claim for relief is essentially the same. He seeks to invoke the same jurisdiction dealt with in the decisions of Federal Magistrate Raphael and Allsop J. These decisions make it abundantly clear that substance of the claims he makes has been dealt with in the prior proceedings.
The generally expressed submissions which suggest that the honourable judge failed to find error of law, that there is jurisdictional error and a lack of procedural fairness and that the Tribunal did not take into account that the applicant had a well-founded fear of persecution for a Convention reason, do not point to any particular error by a court in prior proceedings. The history of the applicant's application and proceedings in Australia are part of the circumstances I take into account in exercising the discretion that I have to dismiss the proceedings as an abuse of process.
Accordingly then, I propose to make the orders sought in Order 1 of the notice of motion. I will hear submissions in relation to proposed orders 2 and 3 in the notice of motion.
RECORDED : NOT TRANSCRIBED
The first respondent seeks first that the applicant pay their costs in the sum of $1,600. I consider that it is appropriate that the applicant, who has ultimately been unsuccessful, should bear the costs of the first respondent and that the amount sought is appropriate. However, I do not consider it is appropriate to make order 2 (that no further application for review be accepted for filing except by leave of the Court) in the absence of submissions as to whether the applicant has instituted a vexatious proceeding or is a vexatious litigant within Rule 13.11 of the Federal Magistrates Court Rules 2001.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 22 December 2005.
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