SZDXS v Minister for Immigration
[2005] FMCA 1791
•25 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXS v MINISTER FOR IMMIGRATION | [2005] FMCA 1791 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the Federal Magistrates Court – no jurisdictional error found – conclusive outcome the RRT decision is a “privative” clause decision – issue of res judicata, Anshun estoppel, abuse of process and incompetence. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
SZDXS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 896
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | SZDXS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2446 of 2005 |
| Delivered on: | 25 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person.
| Advocate for the Respondent: | Mrs E Warner Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The respondent’s Notice of Motion filed on 28 October 2005 is upheld.
The respondent’s Notice of Objection to Competency filed on
5 September 2005 is upheld.
The application for judicial review filed on 31 August 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of D Kelleghan File No: N02/42420) made on 24 May 2003 and handed down on 19 June 2003 or the decision of the Delegate of the Minister for Immigration (of Glenn Day File No: CLF2002/4626) handed down on 21 March 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2446 of 2005
| SZDXS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 5 September 2005, the respondent objects to the jurisdiction of this Court to try the applicant’s application on the grounds that:
a)The decision is a privative clause decision;
b)Contrary to s.477(1A) of the Migration Act 1958 (Cth) (“the Act”), the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and
c)By virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s.477(1A).
In the alternative, by a Notice of Motion filed on 28 October 2005, the respondent moves the Court for orders that the proceedings be dismissed pursuant to:
a)Rule 13.10(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds that the application is frivolous and vexatious; and/or
b)Rule 13.10(c) of the Rules that the proceedings are an abuse of process of the Court.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on
31 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 May 2003 and handed down on 19 June 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 March 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the respondent tendered and applied for the affidavit of Elizabeth Warner Knight sworn on 27 October 2005 to be admitted into evidence (“the affidavit of Mrs Warner Knight”).
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZDXS”.
Background
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 29 December 2001. On 24 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-34) (“CB”). On 21 March 2002 the delegate refused to grant a protection visa (CB pp.41-50) and on 26 April 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.51-54).
The applicant is a Fijian of Indian ethnicity and states he has a tertiary trade or technical qualification in plumbing and metalwork and has worked as a plumber and console operator from 1999 to 2001. The applicant came to Australian in December 2001. He claimed that he fears physical harm due to his race, religion and political opinion, that he might be killed and that he could not count on the Fijian authorities to protect him because they treated Fijian Indians differently from others (CB p.72).
Litigation history
The affidavit of Mrs Warner Knight indicates that on 16 June 2005 an application for judicial review by this applicant was heard before Federal Magistrate Smith. His Honour in a judgment given on 16 June 2005 (SZDXS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 896) dismissed the application with costs. The applicant did not file an appeal from the judgment of Smith FM but instead sought to bring new proceedings before this Court about a matter that has already been determined.
Respondent’s application
Mrs Warner Knight, Solicitor appearing for the respondent, provided written submissions in support of her application and I adopt paragraphs 5-11 for the purpose of this judgment:
[5]These proceedings should be dismissed as an abuse of process because they are no more than an attempt to re-agitate a matter that has already been determined by the Court, namely, whether there was jurisdictional error in the decision of the RRT handed down on 19 June 2004. Apart from considering the grounds of review pleaded by the applicant in the previous proceedings, Smith FM independently analysed the decision of the RRT and held it to contain no jurisdictional error.
[6]In light of the applicant’s previous litigation, it should be inferred that the only purpose the present proceeding serves for him is a collateral one, namely, by having a judicial review proceeding on foot, to enable the applicant to extend his stay in Australia: VWZG v MIMIA [2005] FCA 1018 at [14]. The present application should be dismissed upon the basis that it is an abuse of process.
[7]Regardless of whether such a purpose can be shown, the repeated bringing of similar applications, where it would be unjustifiably vexatious or oppressive, or would bring the administration of justice into disrepute, is an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v R (1994) 181 CLR 251 at 255-256; Chu v MIEA (1997) 78 FCR 314 at 323-326. There is an underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter: Johnson v Gore Wood and Co [2002] 2 AC 1 per Lord Bingham at 22-34; SZAWW v MIMIA [2003] FMCA 479 at [11]-[13].
[8]In the further alternative, the judgment in the previous proceeding before Smith FM creates a res judicata, or alternatively an issue estoppel, or, alternatively, at least an Anshun estoppel with respect to the present application.
[9]The application now before the Court raises six grounds. Comparing those “grounds” with those set out in the amended application in the previous proceeding, one finds obvious overlap. Ground 5 of the first application alleges a failure to take into account the “practical reality” of how Indo-Fijians are treated in Fiji. That equates with the present grounds 1 and, to some extent, 5.
[10]The principles of res judicata, issue estoppel, Anshun estoppel and abuse of process (Henderson v Henderson (1843) 67 ER 313; Walton v Gardiner (1993) 177 CLR 378 at 393; A321 of 2002 v MIMIA [2004] FCA 306 at [18]-[19] per Wilcox J) apply to administrative law cases: e.g. Somanader v MIMIA (2000) 178 ALR 677 per Merkel J at 686-693; BC v MIMA (2001) 67 ALD 60 and on appeal [2002] FCAFC 221 at [22]-[30]; LX per Heerey J esp. at [48]-[53]; S442/2202 v MIMIA [2003] FCA 1240 per Allsop J at [23]-[29]; Applicants M237/2002 per North J at [28]-[30]; Thayananthan per Merkel J at [33] and following; Applicants S311 of 2002 v MIMIA [2004] FCA 45 per Madgwick J at [41]- [45] (where an effort to reformulate a `social group’ did not suffice to arrive at a claim different in substance form that decided). With respect (at least) to claims that have, in substance, already been made, res judicata and issue estoppel operate to prevent them from being brought again. The Court has no discretion in that respect: Thayananthan per Merkel J at [37], referring to his earlier decision in Somanader at [44] with respect to res judicata and also referring to Sharma v SRA of NSW (1998) 85 FCR 391 at 397 with respect to issue estoppel; Wong Tai Shing v MIMIA [2004] FCA 51 per Lindgren J at [41]-[42]. Res judicata applies to any cause of action determined in substance (c.f. form or pleading) between the parties in the original proceeding: Thayananthan per Merkel J at [33]; Somanader per Merkel at [45]; Daniel per Goldberg J at [18]-[23], applying Somanader; Applicants S311 of 2002 at [41]-[44]; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 per Gummow J at 418. In Wong Tai Shing at [43], Lindgren J referred to the need for a “final judgment (albeit appealable) within jurisdiction”, “raising the same cause of action” between the same parties – and proceeded to apply that line of authority.Issue estoppel applies to any issue necessarily decided (again, as a matter of substance) in the prior proceeding between the parties: Thayananthan per Merkel J at [51], citing Blair v Curran at 532; Wong Tai Shing at [44] and [70]-[71]. To the extent that these proceedings raise the same issues as were raised before, an issue estoppel arises – and probably also res judicata.
[11]With respect to any new cause of action, Anshun estoppel will still apply to prevent any claim that could reasonably have been made in the prior proceeding: Thayananthan per Merkel J at [36]; Daniel at [24]-[25]; Wong Tai Shing at [49] – at least in the absence of “special circumstances”: Thayananthan per Merkel J at [37], referring to BC v MIMA [2002] FCAFC 221 at [22]-[30]; Daniel per Goldberg J at [27]-[29]; Wong Tai Shing per Lindgren J at [49]. To the extent that the present application raises arguments that were not raised in the earlier proceedings, the applicant faces at least an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. No “special circumstances” are shown that might prevent an Anshun estoppel from arising
Reasons
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 31 August 2005 and seeks review of the Tribunal decision made on 24 May 2003 and handed down on 19 June 2003, which is a period of approximately
26 months. In the interim period, an application to review the decision of the Tribunal has been listed in the Federal Magistrates Court before Federal Magistrate Smith. No error has been found in the Tribunal’s decision. Further, the applicant did not seek review of Federal Magistrate Smith’s decision by appeal to the Federal Court. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purpose of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did, as set out in its decision, and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Conclusion
The application filed on 31 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 2 December 2005
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