SZEVR v Minister for Immigration
[2006] FMCA 270
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 270 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome of the RRT decision is a “privative” clause decision – issues of res judicata, Anshun estoppel, abuse of process, vexatious proceedings and incompetence. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474
Attorney General (Vic) v Wentworth (1988) 14 NSWLR 481
BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Blair v Curran (1939) 62 CLR 464
Bryant v The Commonwealth Bank (1995) 130 ALR 129
Chamberlain v DCT (1998) 164 CLR 502
Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314
Commonwealth of Australia v International Air Raid Pty Ltd
Court of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Kosi v Minister for Immigration [2003] FMCA 340
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12
Duncan v Fayle & Anor [2003] FMCA 556
Jackson v Goldsmith (1950) 81 CLR 446
Johnson v Gore Wood & Co [2002] 2 AC 1
Nurex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194
Plaintiff S157 v The Commonwealth of Australia (2003) 195 ALR 24
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Ruddock; ex parte LX [2003] FCA 561
Re Williams and Australian Electoral Commission (1995) 21 AAR 467
Rogers v The Queen (1994) 181 CLR 251
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Samson v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 837
Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391
Somander v The Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677
SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
SZCF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650
SZGKO v Minister for Immigration [2005] FMCA 1254
SZGMZ v Minister for Immigration [2005] FMCA 1549
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 77 ALD 1
Walton v Gardiner (1993) 177 CLR 378
Warene v Genex Core Pty Ltd (1996) 35 IPR 284
Williams v Spautz (1992) 174 CLR 509
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
| Applicants: | SZEVR & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2463 of 2005 |
| Delivered on: | 17 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicants: | Mr S Blount |
| Solicitor for the Applicants: | Ebsworth & Ebsworth Lawyers |
| Advocate for the Respondents: | Mr A Carter |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Minister’s notice of motion filed on 21 October 2005 is upheld on the grounds that:
(i)Pursuant to Part 13, r.13.10(c) of the Federal Magistrates Court Rules 2001, the proceedings are an abuse of process of the Court; and
(ii)Anshun estoppel applies and there are no special circumstances to justify its non-application.
The Minister’s notice of objection to competency filed on 19 January 2006 is upheld.
The applicant’s application seeking judicial review filed on 29 August 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2463 of 2005
| SZEVR & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a notice of motion filed on 21 October 2005, the first respondent seeks an order that the application filed in the Federal Magistrates Court on 26 August 2005 be dismissed on the grounds that:
(a)Pursuant to Part 13, r.13.10(b) of the Federal Magistrates Court Rules 2001 (“the Rules”), the proceedings are frivolous or vexatious;
(b)Pursuant to Part 13, r.13.10(c) of the Rules, the proceedings are an abuse of the process of the Court.
(c)Pursuant to Part 13, r.13.10(a) of the Rules, the application does not disclose a reasonable cause of action.
The applicants’ amended application (referred to below), filed on
12 January 2006, changed the nature of the proceedings and the decision that is subject to review. Consequently the first respondent seeks leave to add three new grounds to its notice of motion in order to respond to the amended application filed by the solicitors representing the applicant. The additional grounds are:
(d)The doctrine of res judicata applies and is a complete bar to the application;
(e)The doctrine of issue estoppel applies and is a complete bar to the application;
(f)Anshun estoppel applies and there is no special circumstance to justify its non-application.
In the alternative, by a notice of objection of competency filed on
19 January 2006, the first respondent objects to the jurisdiction of this Court to try this application for judicial review under the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and the Migration Act 1958 (Cth) (“the Act”) on the grounds that:
[1]The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (‘the Tribunal decision’) on 8 November 2002 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
[2]The applicant has not identified any other decision that is sought to be reviewed.
These proceedings were commenced by an application under s.39B of the Judiciary Act, evoking s.483A of the Act, filed in the Sydney Registry of this Court on 29 August 2005. The application was for a review of the decision of the delegate of the Minister made on
13 September 2000 to refuse to grant the applicants protection visas.
On 12 January 2006, the solicitors retained by the applicants filed an amended application under s.39B of the Judiciary Act seeking review of the Refugee Review Tribunal (“the Tribunal”) decision made on
2 November 2002 and handed down on 5 December 2002, affirming the decision of the delegate not to grant protection visas. The amended application seeks relief in the form of constitutional writs against the decision of the Tribunal. I refer to the admission of this document in my reasons below.
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been granted the pseudonyms “SZEVR” (applicant husband); “SZEVS (applicant’s wife); “SZEVT”, “SZEVU” and “SZEVW” (the applicant’s children).
For the purposes of the first respondent’s application, the first respondent tenders and applies for the affidavit of Andrea Jane Nesbitt, sworn on 20 October 2005 to be admitted into evidence.
In response to the first respondent’s application, the applicants tender and apply for the affidavit of SZEVR sworn on 28 November 2005 to be admitted into evidence.
Background
The first and second applicants are husband and wife and their two children. They claim to be citizens of Bangladesh. They arrived in Australia on 9 July 2000. On 3 August 2000, they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 13 September 2000, a delegate of the Minister refused to grant protection visas and on 3 October 2000 the applicants applied to the Tribunal for a review of the delegate’s decision.
Since their arrival in Australia the applicant parents have had two further children who were both born on 25 October 2001. These children lodged separate protection visa applications on 12 February 2002. On 4 March 2002, a delegate of the Minister refused to grant a protection visa. On 19 March 2002, they applied for a review of that decision. Because of their age, the two infant children have had their claims considered together with the claims made by the applicant parents and one older child (Tribunal decision p.2).
One of the original two children has withdrawn from the application before the two new children were joined to their parents’ application. The status of the child who withdrew is not clear from the Court file.
The applicant husband and wife who arrived in Australia with their two sons on 9 July 2000. All claim to be ethnic Bangladeshi and their religion is Islam. While only the applicant husband made refugee claims in the initial protective visa application following the birth of the two children in Australia on 25 October 2001, these children lodged separate protection visa applications and then subsequently applied for review. After the two younger children had their matter decided by the Tribunal they then joined their parents’ application in this Court. Only the applicant husband has made specific claims under the Refugee Convention and will be referred to in the remainder of the decision as the applicant.
The applicant claimed that he was born in the village of Shimul Para, which is 15 miles from Dhaka, his father was a freedom fighter during the War of Independence in 1971 and the applicant was given political lessons from his father and associates. The applicant claims that from 1980 to 1988 he worked in Saudi Arabia and returned to Bangladesh permanently on 27 September 1988. On return, he claims he bought two mini buses, joined the Owner’s Association and in 1989 became the joint secretary of the Mini Bus Owner’s Association for Dhaka-Gazipur which, he claims was supported by and politically aligned with the Jatiyya Party (“JP”). The applicant claims that he strong participation with this organisation.
The applicant claims that on 6 December 1990, the JP leader, President Ershad, resigned and was put in gaol. As a result, one of the influential leaders of the BNP captured the Mini Bus Owner’s Association and tortured the leaders and supporters. The applicant claims he became one of their victims and suffered serious losses in his business.
The applicant claims that when the BNP lost power in 1996 the Awami League formed government in conjunction with the JP. They (the Awami League) did not honour their commitments to the JP, which forced the JP to leave the coalition and oppose various unlawful activities. The applicant claims that once in power, the Awami League seized the Mini Bus Owner’s Association and started employing labour illegally.
The applicant claimed that on 13 May 1999, the JP called a general strike and during it, the Awami League hoodlums destroyed the applicant’s car. The applicant claims that he reported the matter to the police, but they did not find any remedies for him. He claims that Awami League men filed a number of false cases against the applicant to put him in gaol. As the police were searching for the applicant, he claims that he had no alternative but to leave Bangladesh (Tribunal decision p.6 -7).
Litigation history
The affidavit of Ms Nesbitt contains a convenient summary of the litigation history of the applicant which I have adopted and reproduced as follows:
CHRONOLOGY
BACKGROUND
First applicant born in Bangladesh 14 Mach 1959
Applicant arrived in Australia 9 July 2000
DIMIA
Application for protection visa lodged 3 August 2000
Delegate’s decision 13 September 2000
RRT
Application for review lodged 3 October 2000
RRT hearing 14 October 2002
RRT decision handed down 5 December 2002
FEDERAL COURT – N1422 of 2002
Application for judicial review filed 24 December 2002
Justice Wilcox dismissed application
with costs 25 March 2003
FULL FEDERAL COURT – N467 of 2003
Notice of appeal filed 14 April 2003
Black CJ, Heerey and Finn JJ
dismissed appeal with costs 12 August 2003
HIGH COURT – S485 of 2003
Application for special leave
to appeal lodged 4 September 2003
Applicant’s summary of argument and
draft notice of appeal filed 10 October 2003
Respondent’s summary of argument filed 24 October 2003
Applicant’s summary of argument filed 4 June 2004
Kirby and Callinan JJ refused application
for special leave 6 July 2004
FEDERAL MAGISTRATES COURT – SZ2102 of 2004
Application for judicial review filed 8 July 2004
Notice of objection to competency filed 20 July 2004
Respondent’s notice of motion filed 23 July 2004
Mowbray FM upheld objection to competency,
dismissed application 8 December 2004
FEDERAL COURT – NSD1982 of 2004
Application for leave to appeal and accompanying
affidavit filed 24 December 2004
Jacobson J dismissed application
for leave to appeal 11 March 2005
HIGH COURT – S129 of 2005
Application for special leave to appeal filed 4 April 2005
Kirby and Callinan JJ dismissed application
for special leave 1 August 2005
FEDERAL MAGISTRATES COURT – SYG2463 of 2005
Application for judicial review
of delegate’s decision filed 1 September 2005
Directions hearing 18 October 2005
Reasons
As a preliminary matter, the filing of an amended application in these proceedings by the newly-retained solicitors for the applicant raises the issue of whether leave has been applied for or granted to permit this. His Honour Mowbray FM dismissed previous proceedings by this applicant as incompetent and also made an order preventing refiling of any application challenging the Tribunal’s decision. I am advised that the applicants were unrepresented when they commenced the current proceedings.
The current application initially sought to challenge the delegate’s decision only and not the decision of the Tribunal. However, after the filing and service of the notice of motion by the first respondent seeking dismissal – an amended application has now been prepared which goes only to challenge the Tribunal decision and abandons the initial challenge to the delegate’s decision. Mr Carter for the respondent raised the issue that this has resulted in a situation where an amended pleading has been accepted for filing, although it does not appear that leave has been applied for, nor granted. The respondents sought that this preliminary issue be determined.
Mr Carter submitted that the Minister’s case would be that if the amended application is not filed, or leave is not granted for its filing, or to be relied upon, then the case would turn purely upon the delegate’s challenge and be subject to the line of authority on that issue. Alternatively, if the amended application is filed and leave granted, then the matter must turn upon other principles. Mr Carter sought leave to amend the motion to include the doctrines of res judicata, issue estoppel and Anshun estoppel. Mr Carter submitted that until this point is resolved there is uncertainty as to exactly where the applicant’s case lies.
Under the Rules, if the Court is satisfied that a person has instituted vexatious proceedings and has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in this Court or any other Australian court (whether against the same person or different persons), the Court may order that any proceedings instituted by the person not continue without leave of the Court. Neither may the person institute fresh proceedings without leave of the Court. This was the nature of the order made by Mowbray FM on 8 December 2004, after the matter came before him on its fifth judicial review of the same Tribunal decision.
That decision has subsequently been further reviewed by the Federal Court and the High Court and neither of those courts overturned the decision of Mowbray FM. Rule 13.11(6) states that the Court must not give a person against whom an order is made under this rule, leave to institute or continue any proceedings unless the Court is satisfied that the proceedings is not an abuse of process and that there is a prima facie ground for the proceeding. The issue currently before this Court is whether in fact it is an abuse of process and whether there are prima facie grounds for the proceedings.
I indicated to the parties that I would grant leave, as this is one of a series of matters which has been circulating in this Court for some considerable time. This is the eighth time the applicant has come before a Court to be heard, which includes the Full Federal Court and the High Court (on two occasions). However, on each one of those occasions the applicant was unrepresented and was proceeding on a very narrow and unsupportable ground; resulting in the application failing in each instance. Now that the applicant is represented, the matter should be resolved, hopefully for the last time, by considering any issues that arise from the material before the Court. It is for this reason that I grant leave. The applicant is now in a position where he has a representative to clearly articulate the nature of his claim. Consequently the first question to be resolved before this Court is: is there an issue?
The affidavit of Ms Nesbitt contains a chronology of the applicant’s litigation history which has been reproduced in paragraph 16 of this decision. That chronology clearly indicates that the applicant has had judicial review proceedings before the High Court on two occasions on which special leave has been refused. He has also been before the Federal Magistrates Court on two occasions, the Federal Court at first instance on one occasion and at the appellate level on two occasions. The applicant now has legal representation and also previously participated in the Court’s “RRT Legal Advice Scheme”. With the assistance of legal representation, he now returns to this Court with further claims that the Tribunal decision is flawed.
The submission made on behalf of the Minister is that there is no doubt that this is a matter in which the Court has reviewed the Tribunal decision in some detail; having looked at the basis upon which the Tribunal arrived at its original decision. This applicant indicated that he does not accept the decision of the Tribunal, nor the decisions of the various courts. It appears he is prepared to continue refiling applications.
Further, it is submitted that it is quite apparent from some of the comments made by judicial officers of the Federal Court and of this Court, that there is no reviewable error in the decision. In those previous decisions it was decided that the Tribunal decision is a privative clause decision and it is not appropriate to have a further set of proceedings to redetermine previously decided issues. Mr Carter submits that there has to be finality in litigation in this Court – and other courts – which has not occurred.
This is a situation where an applicant, who is dissatisfied with the decisions made, has accessed the appeal process to the highest Court in this country. The High Court pronounced its view on the merits of his case and dismissed his application for special leave. However, the applicant filed a further application in this Court challenging the delegate’s decision only. He adopts a pro forma template pleading seen and dismissed on many occasions in this Court. After the Minister filed a notice of motion in the further carriage of the matter, new pleadings were filed challenging the Tribunal’s decision and the grounds challenging the delegate’s decision were abandoned.
It is not open to the applicant to now seek to wait for changes in the law, or changes in authorities, or even changes that are apparent inconsistencies or ambiguities as to the interpretation of principles to be applied to the decision of the Tribunal.
Mr Carter submits that no reliance should be placed upon any detailed review of the Tribunal’s decision because of the principles of
res judicata. The cause of action has been pleaded and determined. This judicial review should not become an exercise in dividing infinite causes of action from what is purely a challenge to an adverse outcome at the Tribunal.
It was conceded by the representative of the Minister that the applicant may have been disadvantaged by the lack of legal representation at different stages in the preparation for his various cases.
There are procedures in place to help overcome that disadvantage. Namely, a panel advice scheme administered by the Court. More importantly, the judicial officers of this Court and the higher courts examine migration decisions with great detail, to establish to the satisfaction of their own minds and the Court that no error is apparent in the decision. It was submitted that perhaps in some cases, unrepresented litigants receive a higher level of scrutiny into the respective Tribunal decision, than those who are represented. Further, that this is one such case.
The first respondent moves on the notice of motion filed on 21 October 2005. It contends that the application ought to be summarily dismissed as the applicants seek review of the same Tribunal decision that was the subject of the applicants’ previous judicial review proceedings. The doctrines of res judicata and issue estoppel apply to the present application. The substratum of facts which give rise to the right to review are the same, the substance of the proceedings is the same, the right to review in each case is informed by the same substantive law principles and the proceedings do not differ in any material aspect: Sharma v State Rail Authority of NSW (1998) 85 FCR 391at 397; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 per Fisher J at 354 to 356 and Ryan J at 365; Somander v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 per Merkel J; Re Ruddock; ex parte LX [2003] FCA 561 per Heerey J at [48]. It is submitted that res judicata and issue estoppel are a complete bar to the application and the Court has no discretion to allow the matter to continue.
Mr Carter also submitted that the proceedings are barred by the doctrine of Anshun estoppel, as the matter put forward in the current proceedings could have been put in the applicants’ earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. No “special circumstances” have been established by the applicant that would justify the Court in exercising its discretion not to apply the principle in Anshun: BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 per Carr, Tamberlin and Conti JJ at [22] – [30].
Mr Carter further submitted that the current proceedings are an abuse of process and an attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings: SZCXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1650 per Wilcox J at [11]; Samson v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 837; SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377 per Barnes FM. He submits avoiding further public expense in defending a matter which has already occupied the time and resources of this Court, the Federal Court and the High Court.
The repeated bringing of similar applications is an abuse of process. If it would be unjustifiably vexatious or oppressive, or bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at 323-326. It is argued that the Court should consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed: Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Binkham at 22-34; SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479 per Driver FM. It is submitted that given the applicant’s extensive litigation history with respect to the same Tribunal decision, it is clearly open to the Court to infer that the current proceedings had been brought by the applicant for collateral purpose of extending their stay in Australia: Attorney General (Vic) v Wentworth (1988) 14 NSWLR 481per Rhodan J; Re Williams & Australian Electoral Commission (1995) 21 AAR 467; Duncan v Fayle & Anor [2003] FMCA 556; Kosi v Minister for Immigration [2003] FMCA 340.
Alternatively, Mr Carter for the Minister moved upon the notice of objection to competency on the basis that the Tribunal decision was handed down on 5 December 2002 and it has been three years and three months since then. The current application was filed on
29 August 2005. The applicant acknowledges in the amended application that they were notified of the Tribunal decision on or about 5 December 2002. The current application is therefore filed outside the 28 day period specified in s.477(1A) of the Act. The decision of the Tribunal has already been judicially reviewed and found to be absent of any jurisdictional error.
In dismissing the applicant’s application in initial Federal Court proceedings (File number NSD1422/2002) Wilcox J considered each of the grounds raised by the applicant and held in paragraph six of his reasons for judgment:
“I also take into account my own careful perusal of the Tribunal decision. In my opinion, it exhibits no reviewable error. As I say, I fully appreciate that the applicant feels that the Tribunal made a wrong decision about the facts. I also understand that he wishes to remain, with his family, in Australia. But these are not matters which I am entitled to take into account. As there is no jurisdictional error, I have no option other than to dismiss the application.”
The Full Federal Court also considered the applicant’s notice of appeal (File number NSD467/2003) and concluded:
“We have read the reasons of the Learned Primary Judge. His Honour considered that nothing has been put to the Court that founded an argument that there had been jurisdictional error on the part of the Tribunal. His Honour concluded that, as there was no jurisdictional error, he had no option but to dismiss the application. There is nothing before us to cast any doubt upon the correctness of His Honours reasons and the appeal must be dismissed.”
In the applicants’ first High Court application for special leave to appeal (File number S485/2003) Kirby J held that:
“No indication has been made of any error of jurisdiction or any error of law that would authorise this Court to intervene. I explained to the applicant that this Court is not a Court authorised to decide his appeal on its merits. It is confined to the correctness of the errors of law and jurisdictional error.”
The applicant then filed an application in this Court (File number SYG2102/2004). Federal Magistrate Mowbray dismissed that application as incompetent and found that the Tribunal decision was a privative clause decision: at [12]. In Federal Court proceedings NSD1982/2004, Jacobson J upheld Mowbray FM’s orders and said at [16]:
“There is no injustice in refusing leave to appeal because, as a Federal Magistrate observed, the decision of Wilcox J and the Federal Court makes it clear that there is no jurisdictional error in the findings of the RRT.”
Mr Carter submits that the Tribunal decision is a privative clause decision. As the applicants have filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no power to extend that time and has no jurisdiction to hear the application.
Mr Blount of counsel appearing for the applicant (respondents in this application) submitted that he was asking the Court to exercise its discretion in favour of his client. Mr Blount argued that there is an answer for each of the points raised by the respondent and the Court has the discretion to allow this matter to continue to be heard on the substantive matters. Mr Blount indicated that he relied heavily on WACO v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 77 ALD 1 (“WACO”). It was submitted that the headnote in WACO indicated that the facts of that case closely resemble the matter before this Court:
…He advanced claims of fear of persecution on the basis of religious and political opinion against the Iranian Government and the Islamic leadership in Iran. The tribunal expressed scepticism about aspects of the appellant’s claim. The appellant, with the tribunal’s permission, provided to the tribunal after the hearing further information to support his claims, including two letters. The two letters, if accepted as genuine, corroborated a critical element of the appellant’s claims. The tribunal handed down a decision refusing to grant the appellant a protection visa. In its decision the tribunal found that the two letters were not genuine… (Headnote from WACO)
The Full Federal Court in that case held:
…At no time did the tribunal indicate to the appellant that there was any question of the authenticity of the letters or that they were not genuine so as to give the appellant the opportunity, should he wish, to comment on their authenticity or call evidence that the letters were in fact genuine. In the circumstances, the tribunal’s finding of fact that the documents in question were not genuine was unfair. The tribunal had not afforded natural justice to the appellant…( Headnote from WACO)
Mr Blount submits that WACO provides an answer to all the objections raised on behalf of the Minister. Regarding the objection to competency, the decision in WACO was a decision in respect of natural justice. A decision infected by a breach of natural justice is not a privative clause decision under the Act: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24. Mr Blount contends that the decision of WACO also provides an answer to the questions of res judicata, Anshun estoppel, frivolous and vexatious proceedings, and abuse of process. Mr Blount submits that his argument asks the Court to exercise its discretion on a number of points. However, he argues that the applicant has a case on the substantive merits and he should be able to have those arguments heard.
Mr Blount acknowledges that the decision of the Minister’s delegate to refuse a protection visa is normally a privative clause decision. However, Plaintiff S157/2002 v The Commonwealth of Australia is authority for the proposition that a decision flawed by reason of a failure to comply with the principles of natural justice is not a privative clause decision under the Act. The principle was expressed by Gleeson CJ at 36:
It follows that, in my view, if the Tribunal’s decision in relation to the plaintiff was taken in breach of the rules of natural justice, then it is not within the scope of protection afforded by s.474. It is not, relevantly, a decision in which 474 applies.
In ground one of the amended application, the applicant alleges that he was denied procedural fairness in so far as he was not afforded the opportunity to comment on the genuineness of the documents that, if accepted as genuine, would have collaborated crucial elements of his claim. The applicant relies on WACO. In that case, the applicant submitted two letters to the Tribunal which, if genuine, corroborated a crucial aspect of his claim. The Tribunal found the letters were not genuine. The Court found that the Tribunal had not afforded natural justice to the applicant by failing to give the applicant an opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine. The Court found at [12]:
Where the finding of fact made does not turn upon the credibility of the applicant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
In the matter before this Court, on 17 September 2002, before giving oral evidence to the Tribunal, the applicant wrote to the Tribunal attaching a letter from AKM Razaul Karim, claiming to be the applicant’s lawyer in Bangladesh. In that letter, Mr Karim advised the applicant that the Bangladeshi authorities were seeking to arrest him. Mr Karim’s letter attached a purported arrest warrant for the applicant. During oral evidence, the Tribunal put questions to the applicant in respect of the arrest warrant. Mr Blount submits that at no stage did the Tribunal suggest to the applicant that the warrant was not genuine. Nor at any stage did the Tribunal invite the applicant to comment on its genuineness. The Tribunal appeared to accept that the first arrest was one of the applicant’s main claims for asylum in Australia. The arrest warrant, if genuine, corroborates a crucial aspect of his claim for asylum in Australia – that he was persecuted by the authorities through false charges being brought against him.
In its findings, the Tribunal devoted considerable attention to the problem of the arrest warrant. It made a number of findings in respect of the warrant, none of which were put to the applicant. Critically, the Tribunal found that the warrant was not genuine:
The Tribunal accepts this independent country information and does not accept that the brief, unspecific, and undated “warrant of arrest” not written on official letterhead or showing any official stamp or other indication of its authenticity attached to Mr AKM Razaul Karim’s letter is genuine.
Mr Blount submits that, applying WACO, the Tribunal committed an error of law by denying the applicant natural justice in that the Tribunal did not give the applicant the opportunity of dealing with the genuineness of the document. He further submits that applying Plaintiff S157/2002 v The Commonwealth of Australia, the Tribunal’s denial of procedural fairness to the applicant means that its decision is not caught by the privative clause provision under the Act, and consequently the applicants are not barred by effluxion of time.
In respect of res judicata, Mr Blount relied on BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (“BC”) per Sackville J at [29] – [37], where the meaning of “cause of action” for the purpose of res judicata was considered. His Honour found that “different grounds” of judicial review may constitute different causes of action for the purposes of res judicata. Mr Blount drew the Court’s attention to the fact that although Sackville J’s decision was appealed, his findings in respect to res judicata were not an issue. Mr Blount also conceded that other lines of authority such as Somander v Minister for Immigration & Multicultural Affairs and Re Ruddock; ex parte LX could be distinguished from the present case, in that they involve cases where the High Court remitted proceedings for constitutional writs back to the Federal Court after the Federal Court had previously considered the proceedings under Part 8 of the Act.
In the present case, it was argued that the grounds of judicial review raised by the applicant in the amended application were not articulated in any of their previous applications for judicial review of the Tribunal’s decision. Consequently, this amended application raised grounds of judicial review for the first time. The applicant submits that, applying the judgment of Sackville J in BC, the grounds of appeal in the amended application are separate legal grounds for relief, and as such, constitutes separate causes of action.
Mr Blount bases the distinction between res judicata and issue estoppel on the passage in Blair v Curran (1939) 62 CLR 464 at 532. He submits that the Minister appears to rely on the judgment of His Honour Wilcox J to establish that for the purposes of the amended application, the state of law had already been decided, and that the amended application is consequently issue estopped. Mr Blount relies upon WACO, SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) and SZCF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200, all cases which were decided following Wilcox J’s judgment. He argues that given the declaratory nature of the common law, His Honour has fallen into error. Consequently for the purposes of the applicants’ amended claim, the state of law has been long decided and they are consequently not issue estopped.
In respect of Anshun estoppel, Mr Blount contends that the Court has discretion, if it determines that special circumstance exists, to allow an issue to be raised, if it finds that the point was unreasonably omitted from earlier proceedings: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 per Emmett, Conti and Selway JJ at [38]. In Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 per Lingren J at [73], His Honour outlines what may constitute special circumstances:
(a)The proceedings raise important issues concerning the life and the liberty of the applicant;
(b)The Minister is a respondent by force of statue only, and not subject to pressures of cost and time which weigh on individual litigants;
(c)The review is sought in the context of complex alterative sources of judicial review available in the High Court and the Federal Court; and
(d)The state of the authorities at the relevant time was such that it was reasonable not to rely on certain jurisdictional error.
Mr Blount submits that the special circumstances in (a), (b) and (d) apply to this case. Namely:
i)The first respondent claims that, were he to return to Bangladesh, his liberty would be at risk. Although the Tribunal found against him on that point, the amended application alleges the finding was affected by jurisdictional error;
ii)Neither the first nor the second respondent in the substantive case are individuals subject to cost and time restraints of individual litigants; and
iii)In BC Sackville J at [54] found that a substantive change in the law which enables an issue to be raised which could not have been raised before the change could constitute a special circumstances. WACO, SAAP and SZCF v Minister for Immigration & Multicultural & Indigenous Affairs were decided recently and therefore effectively not available to the applicant at the time of his previous applications.
In respect to the issues of frivolous and vexatious proceedings and abuse of process, Mr Blount submitted that the power to strike out pleadings should only be exercised where a case is clearly hopeless or has no chance of success: Warene v Genex Core Pty Ltd (1996) 35 IPR 284. He submits that it is not enough to establish an argument, or even a strong arguable case, that a cause of action cannot be contained.
It must be plain and obvious that the impugned portions of a statement of claim are unarguable: Commonwealth v International Air Raid Pty Ltd; Nurex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194. In the present case, the applicant seeks judicial review based on two new grounds not previously pleaded.
I acknowledge that Mr Blount considers that there are points that could be argued if the matter was to continue to be heard on the substantive matters. To allow this to happen, I have been asked to exercise a considerable amount of discretion for this to occur. However, I believe that time has long since passed for those arguments to be ventilated. The applicant in the substantive proceeding has had the benefit of numerous decisions in this and the superior Courts of the relevant jurisdiction. On each occasion, the decision of the Tribunal has been reviewed and in each circumstance has been unsuccessful. It is now suggested that changes in the law permits further applications to be brought in this Court. The Tribunal decision in this matter has been fully litigated and has resulted in the applicant exhausting his appeal avenue on two occasions and there is no suggestion of any substantial injustice in this situation.
The argument has been put to this Court in respect of changes to the authorities at various times. The applicant was before the High Court on 1 August 2005, which was after both SAAP and WACO were decided. The decision of SAAP was handed down by the High Court on 18 May 2005 while the decision of WACO was handed down by the Full Federal Court on 15 August 2003. The judicial officers of the High Court were well aware of those authorities at the time the applicant sought special leave in that Court. I cannot accept that the applicant did not have the benefit of those decisions while running his most recent application for special leave.
In D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12, the need for finality of jurisdictional determination was considered. Their Honours Gleeson CJ, Gummow, Hayne and Hayden JJ at [34] – [35] made the statement:
[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
[35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".
(Citations ommitted)
In respect of the principles of res judicata the applicant seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review proceedings. The sub-stratum of facts giving rise to the right to review are the same, the substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not differ in any material respect. Mr Blount relies on the authority in Wong v Minister for Immigration & Multicultural & Indigenous Affairs per Lindgren J as to what constitutes a cause of action and whether an action can be broken down into separate causes of action if there is sufficient uniformity of issues in dispute.
The doctrine of res judicata and issue estoppel are both concerned with ensuring finality of litigation. However, as it has been noted in cases such as Blair v Curran at 531 and Jackson v Goldsmith (1950) 81 CLR 446 at 466 to 467, they do operate differently. Res judicata prevents re-agitation of the same cause of action where there has been previous judicial determination of the matter. In Wong v Minister for Immigration & Multicultural & Indigenous Affairs per Lindgren J at [43], His Honour sets out the criteria for the principle of res judicata to operate:
…for res judicata to operate:
·there must have been a final judgment (ambient appealable) within its jurisdiction, but a jurisdictional Tribunal, based on the establishment or failure to establish a cause of action;
·the latter proceedings must raise the same cause of action; and
·except where the prior judgment was in rem, the parties to the proceedings must be the same…
Then at [47] and [48]:
[47]Reliance on the same cause of action in successive proceedings will ordinarily raise the same issue, so that if a litigant is defeated by res judicata, an issue estoppel will also be present. But the converse is not necessarily true: an issue estoppel may defeat a litigant without res judicata doing so; cf the passage from the judgment of Dixon J in Blair v Curran.
[48]The expression “cause of action” can bear different meanings, Brennan J observed in Anshun (at 610 to 611) that the imprecision in its meaning “intends to uncertainty in the finding the ambit of the [res judicata] rule”.
If I find that there is res judicata, I have no discretion as to whether or not to accede to the Minister’s request to dismiss these proceedings, at least in so far as there is commonality of issue: Chamberlain v DCT (1998) 164 CLR 502. Res judicata prevents re-agitation of the same cause of action where there has been previous judicial determination of the matter.
Mr Blount relies on BC per Sackville J at [29]-[37] where His Honour considers the meaning of “cause of action” for the purposes of res judicata. His Honour found that different grounds of judicial review may constitute a different cause of action for the purposes of res judicata. Sackville J said at [30]:
It is not necessarily a simple matter to apply the “substance” test, particularly where the applicant’s case of action does not rest on facts that must be established by evidence, but on the grounds available for judicial review of a decision of an administrative tribunal or decision-maker. A factor to bear in mind in comparing the causes of action in different proceedings is that care is needed not to take a view that is too expansive Macquarie Bank v National Mutual at 560. While Clarke JA made that observation in the context of examining the factual similarities between the two sets of proceedings, I think it equally applies to successive applications for judicial review of an administrative decision.
Further at [36]:
I recognize that each “ground” of judicial review of an administrative decision does not necessarily constitute or found a separate “cause of action” for the purposes of res judicata or cause of action estoppel. But in this case the applicant, in the Pt 8 proceedings identified an alleged flaw in the RRT’s decision quite distinct from the alleged flaw relied on in the remitted proceedings. It is true that each flaw, if established would lead to similar relief being granted (although the source of the jurisdiction and power to grant relief is different). But in characterising the respective claims to set aside or quash the RRT’s decision, the court should lean towards regarding each as founding a separate legal claim for relief and therefore as constituting a separate cause of action. Otherwise there is a risk that litigants will be too readily shut out from pursuing a legitimate claim without the court being able to consider the particular circumstances of the case and, if appropriate, to exercise a discretion in favour of the applicant.
The decision of Sackville J was upheld on appeal by the Full Bench.
The ground pleaded in the applicant’s most recent application to this Court was not pleaded previously. On previous occasions, the applicant resorted to pleadings that had been circulating amongst other applicants in this jurisdiction. They adopt a formulaic approach which is general in nature, to identify categories of jurisdictional error without particularised facts or specific reference to the applicant’s individual case.
The applicant’s amended application filed at the beginning of this hearing were prepared by a legal practitioner and relied on recent legal developments, not identified at the time of the previous pleadings. In the circumstances, I find that the doctrine of res judicata does not apply.
Mr Carter submits that Anshun estoppel is a significant barrier to this amended application succeeding. The reason being that these are all grounds which could have been raised and are all matters which should have been raised, but were not raised until the amended application filed in Court at the beginning of these proceedings. Anshun estoppel is a doctrine which prevents a party from raising, in new litigation, points which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to reply on it. It remains open to the Court to allow the latter proceedings to continue if special circumstances exist which warrant a departure from the prima facie operation of the doctrine.
Factors which may be taken into consideration are set out in the decision of Anshun per Gibbs CJ, Mason J, Atkins J at.602 to 604.
In Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 per Goldberg J at [29] found that although the outcome of proceedings would have serious consequences for an applicant seeking judicial review of a Refugee Review Tribunal decision, this alone did not warrant a departure from the Anshun principle. The Full Federal Court in Bryant v The Commonwealth Bank (1995) 130 ALR 129 at 139 sets out the test to determine whether the subsequent claims arising out of “substantially the same facts” exist.
In the current amended application filed in these proceedings, the Court has been asked to consider the same Tribunal decision that has been considered previously by this Court and the Superior Courts on appeal. The Court is being asked to deal with the same substratum of facts put to the Tribunal. We are dealing with the same substance of the proceedings put to the Tribunal. The rights of relief sought are the same. There is nothing preventing the applicant from raising the procedural fairness argument in any of the three previous proceedings. It is not appropriate the applicant seeks now to litigate a matter in this Court when he already had repeated opportunities to have the decision of the Tribunal judicially reviewed. Having examined the circumstances, I would not exercise the discretion requested by counsel for the applicant.
Finally, there is a question of abuse. Although the applicant has now retained a new legal advisor who has identified arguable points which have not been fully ventilated before the Court, the matter has been determined and concluded. The present proceedings are the seventh set of proceedings to be pursued by the applicant in respect of the same Tribunal decision. As the High Court of Australia held in D’Orta-Ekenaike v Victorian Legal Aid, “a central and pervading tenant of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. What is occurring in this case is another attempt to exhaust the Court’s resources, the administrative processes of the Court and the Minister. There would be serious implications if parties could bring cases back to a Court after the law has changed in some fashion in order to re-litigate their matters afresh.
The present application when filed was a challenge to the delegate’s decision of a type that has been unsuccessful in this Court on a number of previous occasions: SZGMZ v The Minister for Immigration [2005] FMCA 1549 per Smith FM; SZGKO v The Minister for Immigration [2005] FMCA 1254 per Barnes FM. The amended application filed at the beginning of these proceedings abandoned that course and returned to challenge the Tribunal decision on new pleaded grounds. There are compelling reasons to infer that the present application has been brought by the applicant for the predominant purpose of engaging in protracted litigation with the Minister. This is for the collateral purpose of obtaining bridging visas, whose entitlement depends upon the continuance of judicial review proceedings regardless of their merit. The use of the Court’s processes for this purpose is an abuse of that process: Williams v Spautz (1992) 174 CLR 509 at 520 to 522; 526 to 529.
Conclusion
For the reasons set out above, I uphold the Minister’s notice of motion. Consequently the applicant’s application filed on 29 August 2005 should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 March 2006
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