SZEAG v Minister for Immigration
[2005] FMCA 202
•14 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAG v MINISTER FOR IMMIGRATION | [2005] FMCA 202 |
| MIGRATION – RRT decision – previous Federal Court proceedings – estoppels arising – new proceedings summarily dismissed. |
Federal Magistrates Court Rules 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 474(1), 483A
Blair v Curran (1939) 62 CLR 464
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SJQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1284
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
| Applicant: | SZEAG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2275 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 14 February 2005 |
| Date of Last Submission: | 14 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms K Bryant |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Substantive application dismissed under Rule 13.10(c).
Applicant to pay the respondent’s costs in the sum of $2500.
Vacate hearing listed for 29 September 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2275 of 2004
| SZEAG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter the applicant on 20 July 2004 lodged an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal handed down on 1 April 2003. The Tribunal affirmed a decision of a delegate of the Minister refusing the applicant a protection visa.
The applicant had come to Australia in 2001 from Nepal and claimed that he feared persecution if he returned to that country. He said that he had been involved in politics in Nepal as a member of the Nepali Congress Party, and had been targeted by Maoist Terrorists for extortion. He feared a continuation of their threats and extortion if he returned.
The Tribunal gave detailed reasons addressing his case and the situation in Nepal. It accepted his account of what had happened, but did not find it necessary to decide if his fears were fears of persecution within the meaning of the Refugees Convention. This was because the Tribunal decided that “as a matter of practical reality the applicant, as a citizen of Nepal, can enter, re-enter and live in India, with most of the rights and privileges available to nationals of India and without any fear of being returned to Nepal”.
Upon that finding, together with a finding that the applicant would not be at risk of persecution from the Maoists in India, the Tribunal considered that Australia did not owe protection obligations to the applicant so that he was not entitled to a protection visa under s.36(2) of the Migration Act.
It is not necessary for me to examine the claims made by the applicant or how they were dealt with by the Tribunal further, because, in my opinion, the applicant has already had the fullest opportunity to raise all grounds of judicial review which might vitiate the Tribunal decision. He did this in an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Federal Court of Australia on 24 April 2003 and given proceedings number S450 of 2003 in the South Australian District Registry of the Court.
His grounds of application pleaded in those proceedings were of the broadest ambit imaginable.
His application came on for final hearing before Selway J on 7 November 2003, and the applicant was represented by counsel instructed by a solicitor. His Honour gave reasons which have been reduced to writing and published as SJQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1284. In his reasons his Honour states:
It is accepted by the parties that the applicant can only succeed in this application if he can show that there was some jurisdictional error in the process, reasoning or decision of the Tribunal.
The necessity for that concession by the applicant’s counsel is obvious, since unless the Court could make a finding that the Tribunal decision was affected by jurisdictional error the decision would be a privative clause decision for which judicial review was barred by s.474(1) (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases). The issue of whether the Tribunal decision was a privative clause decision was therefore, in my opinion, an issue decided against the applicant by the dismissal of his proceedings in the Federal Court.
Selway J appears to have received broad‑ranging submissions, although they are not set out in detail. It is clear that his Honour closely examined the Tribunal’s reasons and the arguments that were presented to him. He reached the conclusion:
[6] On the material before the Tribunal, it was clearly open to the Tribunal to find, as it did, that the Indian authorities were willing and able to protect the applicant. More to the point, there was simply no evidence before the Tribunal which would have suggested that the Indian authorities are not capable of carrying out that task. It is true, as Ms Nunan has argued, that some of the analysis by the Tribunal may suggest that there are some minor inconsistencies within its own reasons. However, none of these matter much in the context.
[7] There is no jurisdictional error shown, particularly in circumstances where there was no material before the Tribunal upon which it could have reached any result other than that the Indian authorities were willing and able to protect the applicant from Maoists in India. The application must be dismissed.
In the present proceedings, the grounds for review put forward by the applicant in his original application and in a document headed, “Amended Application” are, in my opinion, either not properly pleaded grounds for judicial review because they do no more than attack the merits of the Tribunal’s decision, or they are grounds which were covered by the grounds pleaded previously in the Federal Court. I consider that the judgment of Selway J, gives rise to a res judicata in relation to all those grounds.
More directly, in my opinion, the issue of whether the Tribunal decision was a privative clause decision has been decided against the applicant by Selway J. That issue, arising as it must also in the present case, is a matter “necessarily decided by the prior judgment, decree or order” (see Blair v Curran (1939) 62 CLR 464 at 532). There is therefore an issue estoppel on that issue which has been raised in the present proceedings by the Minister by way of a defensive objection to competency.
Were it necessary for me also to address the doctrine of “Anshun” estoppel, I consider that the applicant has not put forward any evidence or argument which would show that he now has a new ground for judicial review which could not reasonably have been raised before Selway J. He certainly has not pointed to special circumstances which should permit him to raise any new issue. (See Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [38‑9]).
In view of these estoppels, I consider that the applicant’s case is plainly hopeless and is an abuse of process. There is no purpose in allowing it to proceed to a hearing in this Court.
For the above reasons I propose to grant orders on the Minister’s motion pursuant to Federal Magistrates Court Rule 13.10(c). This allows summary dismissal of the proceeding where it is “an abuse of the process of the court”. I consider that this applies since the new proceeding is manifestly hopeless and unsustainable in the face of the previous judicial determination.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 3 March 2005
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