SZFAF v Minister for Immigration

[2007] FMCA 1970

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1970

MIGRATION – Res judicata – doctrine applies to causes of action raised and that should have been raised – abuse of process – no reasonable prospect of successfully prosecuting the proceeding – application dismissed – not to initiate action without leave – registry not to accept documents for filing without leave.

Federal Magistrates Court Rules 2001, r.13.10

SZFAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1746
SZFAF v Minister for Immigration and Multicultural Affairs [2006] FCA 293
Walton v Gardiner (1993) 177 CLR 378
SZCTH v Minister for Immigration (No.1) [2004] FMCA 211
Henderson v Henderson (1843) 67 ER 313

Applicant: SZFAF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2371 of 2007

Judgment of: Turner FM

Hearing date: 22 November 2007

Date of last submission: 22 November 2007

Delivered at: Sydney

Delivered on: 22 November 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A.J. Cox of DLA Phillips Fox

ORDERS

1. The application is dismissed pursuant to Rule 13.10(a) because the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

2. The application is dismissed pursuant to Rule13.10(c) because the proceeding is an abuse of the process of the Court.

3. The applicant may not institute a proceeding in this Court relating to the decision of the Refugee Review Tribunal on 7 September 2004 (RRT reference: N04/49280) without the prior leave of the Court.

4. The Registry is not to accept for filing any further applications by the applicant for review of the decision of the Tribunal on 7 September 2004 without the prior leave of the Court.

5. The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2371 of 2007

SZFAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the RRT” or “the Tribunal”) signed on 7 September 2004, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

2. The first respondent submits that the application should be dismissed on the basis that:

   ·No reasonable cause of action is shown;

   ·There have been other judicial review proceedings in relation to the decision, and that the application is an abuse of process;

   ·The Court lacks jurisdiction to hear the application as it was filed out of time; and

   ·There has been unwarranted delay by the applicant.

3. The applicant’s litigation history to date is summarised as follows (extracted from the affidavit of Emily Baggett, affirmed on 7 August 2007):

DATE	EVENT
03.05.04	Protection visa lodged
07.05.04	Application refused by delegate
07.06.04	Application for review lodged with RRT
07.09.04	RRT affirms the decision of the delegate
29.10.04	Application for judicial review lodged with Federal Magistrates Court (SYG 3211/2004)
16.11.05	Application for judicial review dismissed by Smith FM: SZFAF [2005] FMCA 1746
05.12.05	Notice of Appeal filed with the Federal Court (NSD 2402/2005)
06.03.06	Appeal dismissed by Emmett J: SZFAF [2006] FCA 293
31.03.06	Application for special leave to appeal to the High Court lodged (S 95/2006)
07.09.06	Application for special leave dismissed by Hayne and Crennan JJ
01.08.07	Present application filed

Issues for determination

1. The issues before the Court are as follows:

   ·Whether the application is an abuse of process;

   ·Whether the applicant has a reasonable prospect of successfully prosecuting the proceeding;

   ·Whether the applicant is prohibited from re-litigating this matter.

The application

1. In his application, the applicant set out three grounds as follows:

   (1)The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

   (2)This application is not vexation not the abuse of process. A Tribunal decision can be reviewed by the court second time under certain circumstances: SZCTH v Minister for Immigration (No 1) (2004) FACA 211 [sic [2004] FMCA 211]

   (3)The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

Findings of the Court

1. The applicant is seeking judicial review of the decision of the Tribunal made on 7 September 2004 (RRT Reference N04/49280), which affirmed a decision of the delegate not to grant the applicant a protection visa.

2. On 29 October 2004 the applicant lodged an application with this Court seeking judicial review of the same RRT decision.

3. By decision and orders dated 16 November 2005, Federal Magistrate Smith dismissed the application.

4. On 5 December 2005 the applicant lodged a Notice of Appeal with the Federal Court of Australia against the decision of Federal Magistrate Smith dismissing the application for judicial review. The appeal was dismissed by Justice Emmett on 6 March 2006.

5. On 31 March 2006 the applicant lodged an application with the High Court of Australia for special leave to appeal the decision of Justice Emmett.

6. By order dated 7 September 2006 the High Court of Australia dismissed the application for special leave.

7. The second application for judicial review is seeking to review the same decision of the Tribunal of 7 September 2004 that has been the subject of proceedings in this Court, the Federal Court of Australia, and the High Court of Australia.

8. The response to the application filed by the first respondent alleges that the second application for judicial review is an abuse of process. The Court refers to the decision in Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ as follows:

   proceedings before a 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.

9. The Court finds that the application before it seeks to litigate anew a case which has already been disposed of by earlier proceedings before Federal Magistrate Smith, Justice Emmett and the High Court of Australia.

10. The applicant refers to the decision in SZCTH v Minister for Immigration (No.1) [2004] FMCA 211 as authority for his claim that a decision of the Tribunal can be reviewed a second time. That decision does not stand for that proposition. In fact, Federal Magistrate Driver held in that case, that the proceedings were an abuse of process for reasons including that multiple applications had been made for review of the decision of the Tribunal (at para.6).

11. The application is dismissed pursuant to Rule 13.10(c) as being an abuse of the process of the Court.

12. The Response seeks also that the application be dismissed because it shows no reasonable cause of action. As this is an application to re-litigate a cause of action determined in earlier proceedings involving the same parties and subject matter, the doctrine of res judicata applies. That doctrine, which prevents a party from re-litigating in a subsequent proceeding a cause of action raised by or determined in an earlier proceeding involving the same subject matter and the same parties, not only applies to the causes of action actually determined by the earlier proceeding, but to causes of action that should have been but were not raised by the earlier proceeding: Henderson v Henderson (1843) 67 ER 313 at 319 per Wigram VC.

13. As a result of the doctrine of res judicata, the applicant has no reasonable prospect of successfully prosecuting the proceeding. It is dismissed pursuant to Rule 13.10(a).

14. The Court therefore is not called on to determine the application for an extension of time, or whether the application should be dismissed by reason of delay.

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

Acting Associate:  M Giang

Date:  27 November 2007