SZEWS v Minister for Immigration - [2007] FMCA 2023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2023

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Federal Magistrates Court Rules 2001 r.44.12
Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677
Walton v Gardiner (1993) 177 CLR 378
Rogers v The Queen (1994) 181 CLR 251

Applicant:

SZEWS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2660 of 2007

Judgment of:

Emmett FM

Hearing date:

3 December 2007

Date of last submission:

3 December 2007

Delivered at:

Sydney

Delivered on:

3 December 2007

REPRESENTATION

The applicant appeared in person with a Punjabi interpreter

Solicitors for the Respondent:

Mr M. Snell, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2660 of 2007

SZEWS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first respondent seeks an order dismissing the proceeding before this Court commenced by way of application filed on 29 August 2007 pursuant to a show-cause hearing under r.44.12 of the Federal Magistrates Court Rules 2001 on the basis that the proceeding before the Court has no reasonable prospect of success because it is an abuse of the Court’s process.
The applicant appeared this afternoon without representation, although has the assistance of a Punjabi interpreter.
The applicant has informed the Court that he has severe knee pain and cannot concentrate this afternoon and seeks an adjournment of the interim application of the first respondent. The applicant has no medical evidence in support of the application that he is unfit to attend Court this afternoon. However, in considering whether or not to grant the applicant adjournment, I also have regard to the utility in doing so.
On 11 October 2007, the applicant attended a directions hearing at which time he was granted leave to file and serve an amended application and any further evidence upon which he intended to rely by 15 November 2007 and file and serve written submissions no less than three days prior to this afternoon’s hearing.
No further document has been filed by or on behalf of the applicant in support of the Orders sought by the first respondent.
The first respondent reads the affidavit of Megan Louise Palmer, sworn 12 September 2007. That affidavit annexed prior judicial decisions in respect of the same decision of the Refugee Review Tribunal (“the Tribunal”), dated 13 February 1997, that is the subject of the proceeding presently before the Court.
Ms Palmer’s affidavit discloses that on 13 February 1997 the Tribunal affirmed the decision under review to refuse the applicant a protection visa obligation on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant then joined the Lie class action before the High Court of Australia (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30) and, on 29 May 2003, the matter was remitted to the Federal Court.
On 20 February 2004, the applicant’s application for orders nisi was dismissed by the Federal Court.
On 12 July 2004, the applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 17 May 2005, Federal Magistrate Barnes dismissed the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 7 March 2006, the Federal Court dismissed an appeal from the decision of Federal Magistrate Barnes and, on 28 March 2006, the High Court refused special leave in respect of an appeal of the Federal Court.
It is apparent from the decision of Federal Magistrate Barnes that the grounds relied upon for judicial review were broad and included a ground that the Tribunal did not observe procedures required by the Migration Act 1958 (Cth). Whilst it would appear from Federal Magistrate Barnes’ decision that there were various particulars provided by the applicant in support of that allegation, none were found to give rise to jurisdictional error on the part of the Tribunal.
Ground 1 relied upon in the present application before the Court alleges that the Tribunal did not observe procedures that were required by the Act or the regulations to be observed in connection with the making of the decision. That is plainly the same allegation of error as was made before Federal Magistrate Barnes and in respect of which there has been judicial determination.
Ground 2 of the application before this Court alleges that the Tribunal did not have jurisdiction to make the decision. The allegation is a bare assertion and does not disclose any error capable of review by this Court.
The issue of whether or not the decision of the Tribunal is a privative clause decision because it is not affected by jurisdictional error, has been determined judicially on three prior occasions.
In the circumstances, there is either a res judicata of the issue between the parties or an issue estoppel (Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]; Somanader and Ors v Minister for Immigration and Multicultural Affairs and Anor (2000) 178 ALR 677 per Merkel J at [52]). I agree with the Respondent’s submission as to the law as follows:
“11. The doctrine of res judicata applies to the present application because it seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review applications. The substratum 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. Res judicata is a complete bar to the application and the Court has no discretion to allow the matter to continue.[11] Issue estoppel also applies to the current application as issues raised in this application have previously been put in issue and determined between the parties.”
“[11] See: Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 at 397; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356 per Fisher J and at 365 per Ryan J; Somander v MIMIA [2000] FCA 1192 (24 August 2000) per Merkel J; Re Ruddock; ex parte LX [2003]FCA 561 per Heerey J at [48].
For the applicant to file an application seeking judicial review of a decision, in respect of which there have been three prior judicial determinations, exhausting all avenues for appeal, is an abuse of the Court’s process; is unjustifiably vexatious; and, to allow the application to stand would bring the administration of justice into disrepute having regard to the public interest in the finality of litigation (Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256).
In the circumstances, the applicant’s application for an adjournment is refused as the applicant’s proceeding before this Court has no reasonable prospects of success.
The first respondent seeks an order that the applicant be required to obtain leave of the Court prior to filing any further application seeking judicial review of the Tribunal’s decision. For the reasons that the Tribunal has found that the application for this Court is an abuse of process, the Court is of the view that it is appropriate to make the orders sought.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 13 December 2007