SZEZG v Minister for Immigration - [2006] FMCA 676

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEZG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 676

MIGRATION – Refugee – notice of objection to competency – no jurisdiction – application filed outside of the time limit – Tribunal decision complained of the same as previous litigation – already found to be a privative clause decision – res judicata and anshun estoppel apply – repeat applications – attempt to
re-litigate – abuse of process.

Judiciary Act 1903, s.39
Migration Act 1958, ss.424, 424A, 474, 477, 477(1), 477(1A), 477(2), 483A
Migration Litigation Reform Act 2005, No.137
Federal Magistrates Court Rules 2001, Rule 13.10(c)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426
SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498
Somanader v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1192
Re: Ruddock Ex Parte LX [2003] FCA 561
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
SZAWW v& Ors v Minister for Immigration [2003] FMCA 479
SZEKZv Minister for Immigration [2004] FMCA 975
Walton v Gardener (1993) 177 CLR 378
Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant:

SZEZG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2761 of 2005

Judgment of:

Nicholls FM

Hearing date:

28 April 2006

Date of Last Submission:

06 April 2006

Delivered at:

Sydney

Delivered on:

28 April 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. N. Johnson

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed in upholding the respondent’s Notice of Objection to Competency.
The applicant pay the first respondent’s costs set in the amount of $2,200.
That no further application by the applicant, to review the decision of the Refugee Review Tribunal made on 22 June 2004 and handed down on 30 June 2004, be accepted by the Registry for filing except with leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2761 of 2005

SZEZG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore – Revised)

I have before me an application filed in this Court on 28 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) (the Tribunal was joined as the second respondent at the first Court date in this matter) made on 22 June 2004, which affirmed the decision of a delegate of the respondent Minister made on 19 February 2004 to refuse a protection visa to the applicant.
This matter came on before me by way of a Notice of Objection to Competency, filed 11 October 2005 seeking an order dismissing the application on the grounds that the Court lacks jurisdiction. Further a Notice of Motion was filed by the respondent Minister on 13 October 2005 seeks dismissal of the application on the basis that the proceeding is an abuse of process of the Court, and that the originating application should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (“the Rules”). The respondent also seeks orders that no further application, by the applicant, to review the decision of the Tribunal dated 22 June 2004 be accepted for filing except by leave of the Court. The Notices were supported by the affidavit, with annexures, of Nicola Johnson, a solicitor in the employ of the respondent Minister's solicitors, sworn on 13 October 2005.
At the hearing today (28 April 2006) I also had before me a document headed “Applicant's Submission” which had been filed on 3 April 2006, and the first respondent's submissions filed on 6 April 2006.
The affidavit of Nicola Johnson sworn on 13 October 2005, with relevant annexures, reveals that the only Tribunal decision concerning the applicant, which is now before me, has been the subject of previous litigation. I note, for the purposes of my Judgement, the chronology of relevant events in this matter (annexure “A” to the affidavit) and the references to further annexures to that affidavit in the evidence of Ms. Johnson:
“BACKGROUND
Applicant born in Bangladesh  1 January 1969
Applicant arrived in Australia  13 September 2003
DIMIA
Application for review lodged  14 March 2004
RRT hearing  21 May 2004
RRT decision handed down  30 June 2004
FEDERAL MAGISTRATES COURT – SYG 2355 of 2004
Application for judicial review lodged  26 July 2004 (Annexure “B”)
Court book filed and served  13 August 2004
Hearing before Lloyd-Jones FM  8 November 2004
Lloyd-Jones FM dismissed application  25 November 2004 (Annexure “C”)

FULL FEDERAL COURT – NSD 1863 of 2004
Notice of Appeal lodged 14 December 2004 (Annexure “D”)

Amended notice of appeal filed  1 March 2005
Applicant’s affidavit filed  9 March 2005
Orders of Lindgren J. dismissing appeal                   15 March 2005 (Annexure “E”)

HIGH COURT – S120 of 2005
Application for special leave to appeal filed 30 March 2005 (Annexure “F”)
Hayne & Callinan JJ. dismissed application 8 September 2005 (Annexure “G”)

FEDERAL MAGISTRATES COURT – SYG 2761 of 2005
Application for judicial review filed 28 September 2005
Directions hearing 1 November 2005.”

On 11 October 2005 the respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to hear this matter on the grounds that the decision was made by the Tribunal pursuant to s.477(1A) of the Migration Act 1958 (“the Act”) [as it then was]. This decision provided that an application to the Federal Magistrates Court under s.39 of the Judiciary Act 1903 (“the Judiciary Act”) and s.483A of the Act must be made within 28 days of notification of the Tribunal decision. Section 477(1A) was amended on 1 December 2005 by Migration Litigation Reform Act 2005, No. 137 to s.477(1) which is relevantly in the same terms. The Tribunal decision was handed down on 30 June 2004. The applicant states in this application now before the Court that he was notified of the Tribunal decision on 20 June 2004. The respondent’s contention is that the application before the Court now was filed on 28 September 2005, over 1 year after the expiry of the 28 day period provided in the legislation for the filing of an application for judicial review. The respondent contends by way of the Notice of Objection to Competency that the application involved a privative clause decision, it was not lodged within the 28 days of the applicant being notified of this decision and that by virtue of the relevant legislation the Court must not make an order which has the effect of allowing the applicant to lodge an application outside the period specified.
At the first Court date in this matter, on 1 November 2005, the applicant, who appeared in person with a Bengali interpreter, and the Minister's legal representative, signed short minutes of order, which subsequently became orders of the Court, listing the respondent's Notices for hearing before me. The respondent’s written submissions press the Notion of Motion. In submissions the Minister seeks summary dismissal pursuant to the Notice of Motion. The applicant’s submissions did not focus on relevant issues raised in either of the Notices but sought to press that the Tribunal’s decision was affected by jurisdictional error and relied on SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). Nonetheless both of the Minister’s Notices were set down for hearing before me today.
At the hearing before me the applicant was unrepresented. He appeared with the assistance of an interpreter in the Bengali language.
Ms. Johnson appeared for the respondents.
The applicant is a citizen of Bangladesh who arrived in Australia on
13 September 2003 and applied for a protection visa on 23 October 2003. This was refused by a delegate of the respondent Minister. The applicant sought review of that decision by the Tribunal on 14 March 2004. The applicant was assisted by a migration agent in that application. The applicant’s claims before the Tribunal were contained in the material that he had submitted in both the application for a protection visa, and the application for review.
The applicant’s claims to protection derive from his claim to be associated with the Awami League in Bangladesh. He claimed that if he returned he would be killed by opposition members, or imprisoned by the authorities, because of his political activities. On what was before it the Tribunal was not satisfied that at the applicant had a well founded fear of persecution based on a Refugee Convention reason and affirmed the decision to refuse him a protection visa.
The material before me indicates that:
a)On 26 July 2004 the applicant sought judicial review of the Tribunal decision by application to the Federal Magistrates Court (Annexure “B” to the affidavit of Nicola Johnson).
b)On 25 November 2004, FM Lloyd-Jones dismissed the application with costs (Annexure “C” to the affidavit of Nicola Johnson).
c)On 14 December 2004 the applicant filed a Notice of Appeal in the Federal Court of Australia to review the Judgment of
FM Lloyd-Jones.
d)On 9 February 2005 Justice Lindgren ordered the applicant to file and serve an amended notice of appeal stating, with particulars, proper grounds of appeal by 1 March 2005. This was filed by the applicant (Annexure “D” to the affidavit of Nicola Johnson).
e)On 2 March 2005, Justice Lindgren, acting in the appellate jurisdiction of the Federal Court, dismissed the appeal with costs (Annexure “E” to the affidavit of Nicola Johnson).
f)On 30 March 2005 the applicant filed an application for special leave to appeal in the High Court of Australia, to appeal from the orders and Judgment of Lindgren J. (Annexure “F” to the affidavit of Nicola Johnson).
g)On 8 September 2005, Hayne and Callinan JJ. ordered that the application for special leave to appeal be dismissed (Annexure “G” to the affidavit of Nicola Johnson).
h)On 28 September 2005 the applicant again filed an application for judicial review in the Federal Magistrates Court to review the Tribunal decision made on 22 June 2004.
In his application before me now the applicant puts forward as the grounds of the application:
“The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considering of the oral evidence that was given by the RRT hearing.
The Tribunal denied the application natural justice in determine the appeal in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.
The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to investigate my claims.
The tribunal has denied the procedural fairness by ruling out my claims as fabricated without proper investigation. If the reliance was going to be placed to this I was not given the opportunity to contest at any time prior to the RRT decision.
The tribunal did not use country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal did not consider my claims & did not follow the Amnesty Amnesty International report.
As a political activists, I myself the victim of systematic torture.
I refer SAAP v MIMIA [2005] HCA 24 (18 May 2005). I refer 157/2002 v MIMIA.
I also refer SZFKL v MIMIA [2005] FCA 931 for the RRT be joined as a party to the proceedings.”
No particulars whatsoever are provided in support of these grounds. The applicant has not filed an amended application.
Following the filing of this application the Full Federal Court handed down Judgment in SZEEU. The applicant’s written submissions filed on 3 April 2006 rely on SZEEU and assert a breach of s.424A of the Act on the part of the Tribunal in that in its decision record it drew on adverse inferences based on discrepancies between what was said at the interview before the Tribunal and information given to the Tribunal by the first respondent’s Department (information the applicant gave in visa application).
At the hearing before me on 28 April 2006 the applicant relied on what was put in the application and written submissions. The applicant’s focus was on asserting the claimed jurisdictional error in the Tribunal’s decision, rather than the issues raised by the respondent’s two Notices. Nonetheless, what has been set down for hearing today are the respondent’s two Notices. If the Minister is unsuccessful in this regard, then the applicant would of course have the opportunity at some future time to argue the matters set out in his submissions.
Turning first to the issue of jurisdiction and therefore the respondent’s Notice of Objection to Competency. The applicant states in his application to this Court now that he was notified of the Tribunal’s decision on 20 June 2004. This predates the date of the decision
(22 June 2004). However, Annexure “B” to the affidavit of Nicola Johnson which is a copy of the application previously made to the Court on 26 July 2004 shows that the applicant was notified of the Tribunal’s decision on 30 June 2004. This date coincides with the date of the handing down of the Tribunal decision (see Judgment of FM Lloyd-Jones at page 13 of annexure “B”). There is nothing before me to show that the applicant was the subject of any other Tribunal decision. Nor has he so asserted. In all the circumstances, it is clear that the Tribunal decision complained of now and in previous litigation is the same (that is the decision made on 22 June 2004) and in respect of which the applicant was notified on 30 June 2004.
The Tribunal decision was the subject of judicial review previously in this Court. Federal Magistrate Lloyd-Jones made final orders dismissing the applicant’s application complaining about the Tribunal decision, after a substantive hearing, where he could not find jurisdictional error. The applicant subsequently appealed this decision to the Federal Court. His Honour Lindgren J. could find no obvious ground of appeal after having read the Tribunal decision and that of FM Lloyd-Jones.
In the case of Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2, a Full Federal Court decision made on 4 November 2004, upholding the judgment of Nicholson J., who at first instance held that an appeal against a privative clause decision, lodged outside the time limit specified in s.477 (as it was then) of the Act is, in those circumstances, incompetent unless a ground of review can be made out (I note that the new statutory provisions became operational on 1 December 2005 and applications filed in this Court prior to this date are not captured by the new s.477 even if the decision in such matters are made after 1 December 2005). In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision is a privative clause decision pursuant to s.474 then the time limit provided in s.477(1A) (as it then was) of the Act would apply. Also, pursuant to s.477(2) (as it then was) of the Act, the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days.
The issue of whether the Tribunal decision complained of is a privative clause decision or not requires an examination of whether there is jurisdictional error in it. Even if this matter had gone to a final hearing the respondent’s Notice of Objection to Competency would be considered and on what is before me now the effect of the Judgment of FM Lloyd-Jones, and the dismissal of the appeal against his Judgment by Lindgren J., is that the Tribunal’s decision has already been determined to be a privative clause decision. The effect of a Federal Court Judgment on appeal is that this determination is binding on me: See SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498. The respondent’s Notice of Objection to Competency is therefore upheld and forms a basis for the dismissal of the application.
By way of Notice of Motion the respondent Minister also sought dismissal of the application to this Court on the basis that the doctrine of res judicata applies, and is a complete bar to the application. The applicant is clearly seeking review of the same Tribunal decision that was before the Federal Magistrates Court previously, before the Federal Court acting in its appellant jurisdiction, and that was also considered by two Judges of the High Court. The facts giving rise to the right of review are the same as in the earlier litigation, the substance of the proceedings are the same, and the relief sought on this occasion is informed by the same legal principles. The proceedings do not differ in any material respect. Res judicata is, of course, as the respondent submits, a complete bar to the application and the Court does not have jurisdiction to allow the matter to continue: Somanader v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1192 per Merkel J., and Re: Ruddock Ex Parte LX [2003] FCA 561 per Heerey J., at [48].
For the rest of the complaints in the application [and written submissions], to the extent that these can be properly discerned from what the applicant has put forward, it is clear that there is nothing before me that shows that they were not put in previous litigation or importantly and alternatively that they were not matters that could not properly have been the subject of the earlier proceedings. Had the applicant exercised the appropriate reasonable diligence any such grounds might have been brought forward in those proceedings. I refer here to Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. The applicant has not demonstrated, nor can I see, any special circumstances warranting any exemption from the relevant principal derived from that case.
In relation to the applicant’s reliance on SZEEU, the respondent submitted that the Courts have consistently held that an applicant should not be permitted to take advantage of a change in the law to reactivate proceedings which had earlier been unsuccessful (SZAWW v& Ors v Minister for Immigration [2003] FMCA 479 at [11]; SZEKZv Minister for Immigration [2004] FMCA 975 at [11] affirmed on appeal in SZEKZv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 117). I take the view that in the case before me the relevant (the relevant subject in SZEEU – s.424A) law as it applied to the Tribunal decision has not changed. What SZEEU does is to provide a better understanding of the relevant parts of s.424A that may apply to the Tribunal’s decision. A failure to comply with s.424A was one of the issues considered by FM Lloyd-Jones, and in his Judgment he was not able to identify any jurisdictional error in the Tribunal’s decision, a finding which was endorsed on appeal by the Federal Court. This Court now is bound by this finding for the reasons already referred to above.

I accept the respondent’s written submissions that the applicant’s application constitutes an abuse of the process on the basis that it represents an obvious attempt to re-litigate exactly the same kind of matters that were previously litigated and considered by a Federal Magistrate (whose Judgment was endorsed by a Federal Court Judge who dismissed the appeal). In this regard see: Walton v Gardener (1993) 177 CLR 378 at 393 (“Walton v Gardener”) and Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133 at [5] per Wilcox, Giles and Downes JJ.
I should also indicate for the applicant's benefit that the repeated bringing of similar applications where it would be vexatious or oppressive is also an abuse of process. The respondent, in submissions, has referred to Wilcox J., in Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 where His Honour found that the doctrine of “res judicata” applied in that case, but then went on to observe relevantly at [18]-[19]:
“[18] It will be apparent that the argument sought to be made confronts significant difficulties. However, I do not think it is appropriate to determine the present application by reference to those difficulties. The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case.
[19] If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.”
In Walton v Gardiner, per their Honours Mason CJ, Deane and Dawson JJ, at [22]:
“Yet again, proceedings before the Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
There is a clear underlying public interest that I ask the applicant to consider, and that is, that there be finality in litigation and that a party should not be repeatedly vexed in the same matter. In this regard, the respondent has also referred me to Madgwick J., in SZBJM vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 where His Honour said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”
The applicant has already previously brought an application before this Court to complain about the Tribunal’s decision. He appealed the Judgment of this Court to the Federal Court, and then has been to the High Court of Australia. He now seeks to re-litigate exactly the same matter. There is clearly an underlying public interest in the finality of litigation. It is unjustifiable and vexatious for the respondent to be repeatedly made to meet allegations of error which have been dealt with and dismissed.
In all, therefore, the Tribunal’s decision has already been conclusively determined as a privative clause decision and this is binding on me. On this occasion the applicant has filed his application to the Court outside the time limit set out in the relevant statutory provisions. The application is dismissed in upholding the Notice of Objection to Competency and in any event the application may also be summarily dismissed pursuant to the respondent’s Notice of Motion.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 26 May 2006