SZEEO v Minister for Immigration

[2005] FMCA 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEEO v MINISTER FOR IMMIGRATION [2005] FMCA 77

MIGRATION – RRT decision – Federal Court dismissed previous application for judicial review – Issue estoppel and “Anshun” estoppel against raising previous or new grounds in a new proceeding.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Part 8

NADC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 201
NADC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 176
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242

Applicant: SZEEO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2550 of 2004

Judgment of: Smith FM

Hearing date: 24 January 2005

Last Submission: 24 January 2005

Delivered at: Sydney

Delivered on: 24 January 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr I Muthalib

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $3250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2550 of 2004

SZEEO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 September 2002 and handed down on 1 October 2002. The Tribunal affirmed a decision refusing an application for a protection visa.

2. The jurisdiction of this Court under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In matters such as the present the jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases, Part 8 does not allow the Court to set aside a Tribunal decision and to order a rehearing unless the Court is satisfied that the Tribunal decision or procedures were affected by jurisdictional error.

3. The applicant arrived in Australia on 8 April 2000 and applied for a protection visa on 9 May 2000.  I do not consider it necessary for me to describe the claims made in the applicant’s application for a protection visa nor how he sought to persuade the Tribunal to accept them.  They are fully set out in the reasons of the Tribunal and, more significantly, in two judgments of the Federal Court given in proceedings which the applicant commenced in that Court on 25 October 2002 seeking to have the Tribunal’s decision set aside.

4. On 14 March 2003, Hill J delivered a reserved judgment which carries the title NADC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 201. His Honour had before him an application and written submissions presented by the applicant, which made general allegations that there was error of law and jurisdictional error, that there was no evidence or other material to justify the decision, and that proper procedures were not followed, with a reference to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“Muin”).

5. His Honour carefully describes the Tribunal decision, and explains a concern of his Honour concerning procedural fairness on the part of the Tribunal before doubting the authenticity of documents tendered by the applicant to the Tribunal as corroboration of his claims.  However, his Honour concluded that any failure of procedural fairness could have made no difference to the outcome of the case, having regard to alternative findings made by the Tribunal.

6. The Tribunal had given alternative reasons for not accepting the applicant’s claims as giving rise to protection obligations on the part of Australia, on the assumption that all the documents tendered were authentic.  In those circumstances, his Honour decided that as a discretionary matter, the Court should not set aside the decision of the Tribunal notwithstanding that there may have been a breach of natural justice committed by the Tribunal during the course of the proceedings.

7. It is clear that his Honour had before him broad‑ranging submissions on the part of the applicant, addressing not only procedural matters but also about how the Tribunal reached its decision.  His Honour says at [16]:

   Submissions in support of the application for judicial review were filed on behalf of the applicant.  They followed the form of similar submissions which had been filed in other matters.  In part, the submissions related to factual matters.  So it is said that there were sufficient grounds for the Tribunal to conclude with certainty that the applicant’s claims and fears were genuine.  That is not a matter, however, that avails the applicant here.

8. The applicant appealed to the Full Court of the Federal Court with grounds for appeal stated as follows:

   ·Federal Court did not consider procedural fairness and natural justice issue made by the RRT.

   ·Federal Court did not consider any error of law made by the RRT.

9. The applicant appeared for himself before Black CJ, Heerey and Finn JJ.  In reasons given on 13 August 2003, and published as NADC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 176, their Honours refer to “lengthy written submissions” filed by the applicant.  Their Honours at [3] identify three points as having been raised in the submission:

   ·that the primary Judge ordered a transcript of the tape of the hearing before the Tribunal and that the respondent failed to provide it and that consequently there was procedural unfairness;

   ·that the primary Judge incorrectly stated that the appellant delayed in providing documents to the Tribunal; and

   ·that the Tribunal did not observe correct procedures, made its decision without investigating the appellant’s supporting documents and did not consider the “Part B documents”.

10. Their Honours dealt with each of these points, and supported Hill J’s conclusion that any failure of procedural fairness by the Tribunal could not have affected the outcome of the proceedings having regard to alternative findings that the Tribunal made.  Their Honours say that the second point was based upon a misunderstanding of Hill J’s reasons.  In relation to the third point, they say at [6]:

    The final point raised by the appellant’s submissions is a challenge to the Tribunal’s decision on the basis of the majority of the High Court’s reason in Muin.  This was raised before the primary judge and rejected.  There is no material before us establishing the requisite facts for such a submission to succeed, or which would cast any doubt upon the correctness of his Honour’s reasons.

    Their Honours dismissed the appeal with costs.

11. Following the Full Court decision, the applicant filed an application for special leave to appeal to the High Court of Australia on 8 September 2003.  No proper basis was shown, and a Notice of Discontinuance was filed on 17 August 2004.

12. Meanwhile, the applicant had commenced the present new proceedings in this Court on 16 August 2004.  The “grounds of the application” are given in six paragraphs which allege various general judicial review grounds, without descending to any particularisation.  In the absence of particulars, I cannot discover any substance in any of them.

13. Pursuant to directions of the Court, an amended application was filed by the applicant on 8 November 2004.  The amended application raises two grounds:

    ·That the tribunal denied the applicant procedural fairness/natural justice.

    ·The tribunal failed to act in a bona fide matter in relation to the making of the decision.

14. As I understand the particulars given in the document, both these grounds seek to canvas the fairness of the Tribunal’s adverse findings in relation to the corroborative documents.  I consider that the amended application does not raise any matter which was not previously decided by Hill J and the Full Court.  I would make the same analysis of various points made in the applicant’s “written submission” filed on 10 January 2005.  Moreover, if it were possible, by an assiduous analysis of these documents, to locate some argument which had not been previously put to the Federal Court, I consider that all of the applicant’s present arguments could and should reasonably have been raised in those proceedings.

15. Before me today, the applicant appeared in person.  I drew to his attention the submission made by the respondent that his application should be dismissed based on doctrines of res judicata or issue estoppel, including under its extended “Anshun” principle.  I explained to him that it was argued that any additional ground for judicial review which he sought to raise in this Court should reasonably have been brought in the earlier proceedings, and that special circumstances would need to be identified before the Court would consider his new arguments in a fresh proceeding.  I invited the applicant to make submissions in relation to this.

16. The applicant made no attempt to persuade me that any of his grounds had not been previously raised in the Federal Court, nor that there was any reasonable explanation why he had not previously put forward all his grounds for review, nor that there was any special reason why he should be allowed to raise any fresh ground.

17. He made two criticisms of the Tribunal’s decision.  First, that the Tribunal had failed to consider his most significant piece of evidence, being a letter from a Bangladeshi MP dated 28 December 2001 which purported to corroborate the applicant’s claimed involvement in politics and his claim that he had been wrongly charged with murder.  He also submitted that the Tribunal made an error in not investigating that letter further.

18. There is no substance to either of these submissions.  The Tribunal identified the letter at page 9 of its reasons as one of the supporting documents tendered at the hearing.  The document is within the group of documents that the Tribunal considered were not genuine.  The Tribunal also considered the document in its alternative path of reasoning, that is, on the basis that it was genuine.  This is clear in a discussion at pages 18 to 19 of its reasons, where the Tribunal says that, if the letter is accepted, it would establish that there had been widespread attention given to the false murder charge against the applicant, and that this would help to ensure that the charge would get appropriate objective consideration by the Courts in Bangladesh.  The Tribunal said that, if in fact the charges were false and politically motivated, the applicant could in these circumstances obtain protection from the courts in Bangladesh.

19. It is therefore clear that the Tribunal did consider the letter, and did so on the basis that it was genuine and true.  I consider that no error of law or procedure arose out of how the Tribunal has considered the letter at this point in its reasons.  I cannot see what further investigation of the letter would have assisted the applicant.

20. In any event, in my view, these arguments should have been raised in the previous proceedings, even if they were not somewhere lurking in the submissions which were made to the Federal Court, either at first instance or on appeal.  I can see no special reason why they should be raised afresh in this Court.

21. The principles of estoppel were recently examined by the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36–9].  Their Honours considered that principles of issue estoppel and “Anshun” estoppel were appropriately applied in judicial review applications similar to the present.

22. Applying those principles to the present application, I consider that it should be dismissed.

    RECORDED  :  NOT TRANSCRIBED

23. I order the applicant to pay the respondent’s costs in the sum of $3250.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  7 February 2005