SZFME v Minister for Immigration
[2008] FMCA 740
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFME v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 740 |
| MIGRATION – Practice and procedure – summary dismissal of proceedings under Federal Magistrates Court Rule 13.10 – Anshun estoppel – abuse of process. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), Part 8 Division 2 Federal Magistrates Court Rules 2001, Rule 13.10, 13.11 |
| SZFME v Minister for Immigration & Anor [2007] FMCA 21 SZFME v Minister for Immigration & Citizenship [2007] FCA 678 proceedings S276 of 2007 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 NAIB v Minister for Immigration & Anor [2006] FMCA 1124 Ramsey v Skyring [1999] FCA 907 Walton v Gardiner (1993) 112 ALR 289 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78 NALE v Minister for Immigration [2003] FMCA 366 |
| Applicant: | SZFME |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 528 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 23 May 2008 |
| Date of Last Submission: | 23 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed by the applicant on 5 March 2008 is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of process.
The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa filed 17 January 2002 be accepted for filing in this Court except with leave of the Court.
The Court directs that the Court registry be notified forthwith in accordance with Order 2 above.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 528 of 2008
| SZFME |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
The present application was filed in the Federal Magistrates Court on 5 March 2008, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act), seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 17 November 2004, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
The first respondent now seeks orders pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules) for summary dismissal of the application as an abuse of process.
Background
The applicant was born on 10 May 1975. He claims to be a national of Bangladesh and of Islam faith.
The applicant arrived in Australia on 15 January 2002 on a Bangladesh passport issued in his own name.
The applicant lodged an application for a protection visa on 17 January 2002 on the basis that he and his family have a strong political background with the Chatra League, the Awami League, the Jatiyo League and the Communist Party which has led to his being politically persecuted by the BNP. The applicant claimed that his family members have been killed due to their political involvement and that he would also be killed if he were to return to Bangladesh.
The further history of this matter is set out at paragraphs [4]-[15] of the affidavit of Jaimee Dinihan filed on 18 March 2008, as corrected by his further affidavit filed on 22 May 2008 (the Dinihan affidavit).
On 29 April 2002 a delegate of the first respondent refused the protection visa application.
On 27 May 2002 the applicant applied for review by the Tribunal of the delegate's decision. On 17 November 2004 the Tribunal (the first Tribunal) affirmed the delegate's decision (Dinihan affidavit at [1]-[27]).
On 13 January 2005 the applicant applied to the Federal Magistrates Court for judicial review of the first Tribunal decision. On 2 February 2007 Nicholls FM dismissed the application for judicial review: SZFME v Minister for Immigration & Anor [2007] FMCA 21.
On 20 February 2007 the applicant filed a notice of appeal in the Federal Court. On 10 May 2007, Edmonds J dismissed the appeal: SZFME v Minister for Immigration & Citizenship [2007] FCA 678.
On or about 7 June 2007 the applicant filed an application for special leave to appeal to the High Court of Australia: proceedings S276 of 2007 (Dinihan affidavit at [82]-[83]). On 6 February 2008 the application for special leave was dismissed by Gummow and Kiefel JJ (Dinihan affidavit at [84]-[85]).
The proceedings before this Court
The applicant filed the application in this Court on 5 March 2008 setting out 5 grounds of review of the Tribunal’s decision.
On 23 May 2008 the first respondent filed in Court an amended response seeking orders for summary dismissal of the applicant's application as an abuse of process.
The applicant appeared in person before this Court on 23 May 2008 with the assistance of a Bengali interpreter. Ms Crittendon appeared for the first respondent. The Court dealt on that occasion with the preliminary issue arising under the amended response.
Orders sought in the Amended Response
The orders sought by the first respondent in the Amended Response are:
(1)The First Respondent submits that the Court should dismiss the application as an abuse of process in light of the litigation history of the Applicant.
(2)Further, and in the alternative, the Applicant is barred by res judicata and/or is estopped from bringing these proceedings.
(3)Further, and in the alternative, the First Respondent does not admit that there is any jurisdictional error in the decision of the Second Respondent.
(4)Further, and in the alternative, the First Respondent submits that if the Court finds that the decision of the Second Respondent is affected by jurisdictional error (which is not admitted), then the Court should, in its discretion, refuse to grant relief on the basis of delay. The decision of the Second Respondent was handed down on 17 November 2004, the applicant did not make this application for judicial review until 5 March 2008, that is some three years and four months after the decision was handed down.
Whether an abuse of process.
Rule 13.10 provides that:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
I consider that the Tribunal decision was a valid and final decision reviewing the delegate’s decision. That decision has been the subject of judicial review by each of the Federal Magistrates Court, the Federal Court and the special leave application to the High Court. No jurisdictional error has been found following careful judicial scrutiny on each of these occasions.
As relevantly observed by Edmonds J in SZFME v Minister for Immigration & Citizenship [2007] FCA 678 at [23]:
[Nicholls FM] made no error in dismissing the application as there was no jurisdictional error in the Tribunal’s decision either identified by the appellant or separately considered by his Honour.
Furthermore, as observed by Gummow J in the special leave application:
The applicant is a citizen of Bangladesh who claims to fear persecution because of his alleged political opinion and affiliation with the Awami League. The Refugee Review Tribunal affirmed the decision of a delegate of the respondent Minister to refuse the applicant's application for a protection visa. Although the Tribunal accepted that the applicant had some involvement with the Awami League, the Tribunal was not satisfied that there was a real chance the applicant would be harmed because of that involvement or because of the other matters he put to the Tribunal. The Tribunal also found that it would be reasonable for the applicant to live elsewhere in Bangladesh in safety. It followed that the Tribunal was not satisfied that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh.
An application for judicial review by the Federal Magistrates Court was dismissed by Nicholls FM on 2 February 2007. The Court found that the Tribunal's findings were untainted by jurisdictional error. An appeal to the Federal Court was dismissed by Edmonds J on 10 May 2007. His Honour rejected the applicant's grounds of appeal and observed that the Tribunal's decision had two alternative bases. The second basis, that the applicant could relocate such that Australia did not owe him protection obligations, was unchallenged before his Honour.
The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court. There are no prospects of success on any appeal to this Court. Special leave is refused.
An applicant is estopped in further proceedings from raising a ground of review that the applicant reasonably could have raised in previous proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356; Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192, NAIB v Minister for Immigration & Anor [2006] FMCA 1124 at [10]-[13].
In this regard, I have compared the matters raised by the applicant in his present application with those raised in the previous proceedings before this Court, the Federal Court and the High Court. In this regard I accept as accurate the summary of the history of the applicant's claims set out in the written submissions of the first respondent.
I consider that the applicant has provided no justification in the present proceedings for his commencing proceedings anew in the Federal Magistrates Court after the failure of his previous judicial review proceedings. I consider that all the matters now raised by the applicant before this Court are matters that were, or could by the exercise of reasonable care, have been previously raised, and which were, or could, have been decided in the previous proceedings.
I therefore consider that no special circumstances exist in the current proceedings that would warrant the Court declining to apply the Anshun estoppel principles in these circumstances. I therefore accept the submission by the first respondent that:
To the extent that the grounds of review raised by the Applicant in the application are different to those of the Applicant's previous applications, the First Respondent submits that it was open to the Applicant to have raised the grounds pleaded in the present application in the previous proceedings. Accordingly the Applicant is estopped from now pleading those grounds in the present proceedings. There are no special circumstances that would prevent the doctrine of Anshun Estoppel from being applied.
It is also immaterial that the applicant may believe in the justice of his claims and may or may not understand that they have been authoritatively and finally rejected (cf Ramsey v Skyring [1999] FCA 907, Sackville J, at [56], quoting Toohey J in Jones v Skyring [1992] HCA 39, 66 ALJR 810 at 813).
As to whether the present proceedings constitute an abuse of process, the High Court in Walton v Gardiner (1993) 112 ALR 289 referred to the underlying public interest in the finality of litigation. It further held, at 298, that:
… proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … proceedings before a court should be stayed as an abuse of process if… their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.
Also, in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, the Full Federal Court, at [36] observed:
It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
I consider that the present application fits squarely within the description of a claim foredoomed to fail and one where the applicant is seeking to litigate anew a claim that has already been disposed of by a history of earlier proceedings and in which all rights of appeal have been exhausted. It is clear from the judicial history of the current proceedings, including the above-quoted observations by Edmonds J and Gummow J that the applicant has no prospects of success.
I consider that to allow the applicant to commence a further, and wholly unmeritorious, application before this Court would involve the resources of the community being expended in further litigation on a matter that has been now authoritatively and finally settled.
The Federal Court in Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, held (at 85), that:
…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.
I consider that it is open to the Court to draw the inference, in all the circumstances, that the applicant has instituted the present second application to this Court in order to use the Court’s process purely for the collateral purpose of extending his period of stay in Australia.
I consider that this collateral purpose constitutes an abuse of the process of this Court (and see NALE v Minister for Immigration [2003] FMCA 366 at [12]).
The relevant legal principles, where a repeated application for review of a delegate’s decision is made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a second wholly unmeritorious application before this Court, notwithstanding a final and definitive High Court decision, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
For the above reasons, I am satisfied that the present proceedings should be summarily dismissed under Rule 13.10(c) of the Rules as being an abuse of process.
Given this determination, it is unnecessary to consider the other or alternative orders sought by the first respondent in the amended response.
Conclusion
The order sought by the first respondent in the amended response that the Court dismiss the application as being an abuse of process is upheld.
The application filed on 5 March 2008 is dismissed pursuant to Rule 13.10(c) of the Rules as an abuse of process. The Court makes the following consequential orders:
·The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa filed 17 January 2002 be accepted for filing in this Court except with leave of the Court.
·The Court directs that the Court registry be notified forthwith in accordance with the above order.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 6 June 2008
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