SZFMW v Minister for Immigration
[2008] FMCA 1274
•5 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1274 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the Tribunal breached s.441G of the Migration Act 1958 (Cth) – Anshun estoppel – applicant failing to raise issue in earlier legal proceedings. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.441G, 474 |
| BC v Minister for Immigration [2001] FCA 1669 Egglishaw v Australian Crime Commission [2007] FCAFC 183 Minister for Immigration v SZKKC [2007] FCAFC 105 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 SZFMW v Minister for Immigration & Anor [2006] FMCA 768 SZFMW v Minister for Immigration [2006] FCA 110 SZFMW v Minister for Immigration & Anor [2008] HCATrans 138 SZIZO v Minister for Immigration [2008] FCAFC 122 Wong v Minister for Immigration [2004] FCA 51 |
| Applicant: | SZFMW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1939 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 5 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2008 |
REPRESENTATION
The Applicant appeared in person, with the assistance of Mr Laba Sarkis
| Solicitors for the Respondents: | Ms A Nanson Australian Government Solicitor |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1939 of 2008
| SZFMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 28 July 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 11 December 2003. The Minister, by response filed on 4 September 2008, seeks the summary dismissal of the application noting that the decision of the tribunal has previously been reviewed by this Court and on appeal in the Federal Court. The High Court refused special leave to appeal.
The show cause application is supported by an affidavit of the applicant made on 26 July 2008. The Minister's response is supported by the affidavit of Benjamin May made on 3 September 2008. The relevant facts are accurately summarised in the affidavit of Mr May at paragraphs 4 to 30 which I adopt with amendments:
The applicant, a citizen of Lebanon, arrived in Australia on 16 January 2003. On 21 February 2003, the applicant's migration agent lodged an application in his name for a protection visa. His essential claim was that he feared persecution in Lebanon arising from his status as a Christian deserter from the Lebanese armed forces. The application was refused by a delegate of the Minister on 27 March 2003.
On 4 April 2003, the applicant's migration agent wrote to the Tribunal enclosing an application in the applicant's name for review of the delegate's decision, and a form 956 (authorisation of person to act and receive communication). The application was marked as having been received by the Tribunal on 8 April 2003.
On 8 April 2003, the Tribunal wrote to the applicant and his migration agent acknowledging receipt of the application.
On 14 August 2003, the Tribunal wrote to the applicant and his migration agent inviting the applicant to attend a hearing before the Tribunal.
On 28 August 2003, the applicant's migration agent wrote to the Tribunal enclosing a response to the hearing invitation. That letter and the response were marked as having been received by the Tribunal on 29 August 2003.
On 21 November 2003, the Tribunal wrote to the applicant and his migration agent inviting them to attend the handing down of its decision.
On 11 December 2003, the Tribunal wrote to the applicant and his migration agent informing them that the Tribunal had decided that the applicant was not entitled to a protection visa.
On 17 January 2005, the applicant's then-solicitors filed an application in the applicant's name for review of the Tribunal's decision in this Court; see proceedings No. SYG 133 of 2005.
On 19 April 2006, the applicant filed an affidavit setting out a number of contentions. On 20 April 2006, the applicant's then-solicitors filed a notice of withdrawal.
On 4 May 2006, the applicant appeared at a hearing before Federal Magistrate Smith, and handed up a further document signed by Mr Toufic Laba Sarkis, which was marked as Exhibit A in those proceedings.
On 4 May 2006, having considered each of the applicant's contentions in detail, Smith FM concluded that there was no jurisdictional error in the Tribunal's decision and that it was therefore a privative clause decision and unable to be challenged pursuant to s.474 of the Migration Act 1958 (Cth) (“the Migration Act”). Accordingly, his Honour dismissed the application with costs.[1]
On 15 May 2006, a Notice of Appeal was filed in the name of the applicant in the Federal Court of Australia; proceedings No. NSD 933 of 2006.
On 7 August 2006, the matter came before Cowdroy J. The applicant appeared in person assisted by his friend Mr Laba Sarkis. On 22 August 2006, Cowdroy J dismissed the appeal, finding no error in the decision of the Federal Magistrate, and no jurisdictional error in the decision of the Tribunal.[2]
On 20 September 2006, the applicant lodged an Application for Special Leave to appeal the decision of Cowdroy J in the High Court of Australia; proceedings No. S340 of 2006.
On 7 March 2008, Heydon and Keifel JJ dismissed that application.[3]
[1] SZFMW v Minister for Immigration & Anor [2006] FMCA 768
[2] SZFMW v Minister for Immigration and Multicultural Affairs [2006] FCA 1110
[3] SZFMW v Minister for Immigration and Multicultural Affairs [2008] HCATrans 138
I ordered an immediate show cause hearing in this matter. The applicant was assisted by Mr Laba Sarkis, who appeared by leave. The first question was whether this Court had any jurisdiction, noting that the applicant asserted notification of the Tribunal decision on 18 December 2003. When I pointed out the significance of the Full Federal Court decision in Minister for Immigration v SZKKC [2007] FCAFC 105, that assertion was withdrawn. I have no evidence of whether and, if so, when the applicant physically received a copy of the Tribunal decision.
There is also a question of whether the Court has any jurisdiction in the light of s. 474 of the Migration Act. In his decision Smith FM found that the decision of the Tribunal was a privative clause decision[4]. On appeal in the Federal Court, Cowdroy J found that the Tribunal's ultimate finding was free from jurisdictional error[5]. The High Court found that there were insufficient prospects of success to justify the granting of special leave to appeal[6]. To the extent that the issue of whether the Tribunal decision is free from jurisdictional error has already been conclusively determined, this Court would have no further jurisdiction. I am not bound by the decision of Smith FM, but I am bound by the decision of the Federal Court on appeal from this Court. However, it may be that the Federal Court's finding at [36] is too limited to preclude the possibility that that issue has not been finally determined.
[4] SZFMW v Minister for Immigration & Anor [2006] FMCA 768 at [49]
[5] SZFMW v Minister for Immigration [2006] FCA 1110 at [36]
[6] SZFMW v Minister for Immigration & Anor [2008] HCATrans 138
The applicant seeks to take advantage of the recent decision of the Full Federal Court in SZIZO v Minister for Immigration [2008] FCAFC 122. The show cause application asserts a breach of s.441G of the Migration Act. The documents annexed to the affidavit of Mr May disclose an arguable case in that, while the Tribunal appears to have corresponded with the applicant's authorised recipient at the postal address of the authorised recipient disclosed in correspondence, the Tribunal has apparently not corresponded with the authorised recipient at the office address stipulated in section C of the review application completed by the applicant. The issue was not raised in the earlier court proceedings but the principle of res judicata probably still applies: BC v Minister for Immigration [2001] FCA 1669. Even if it does not, the difficulty for the applicant is that there is no reason, apart from the applicant not having been aware of the issue, why the issue could not have been raised in those earlier legal proceedings. The applicant is simply seeking to take advantage of a recent court decision that appears to favour an argument that could have been raised previously. The circumstances in my view give rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589[7]. The principle of Anshun estoppel is supported by the public policy consideration that there must be an end to litigation. Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage.
[7] see also Wong v Minister for Immigration [2004] FCA 51; Egglishaw v Australian Crime Commission [2007] FCAFC 183
In this matter, in my view, the application should be dismissed on the basis of Anshun estoppel and I will so order.
Costs should follow the event in this case. The Minister seeks scale costs of $1,000. It appears that the applicant has been paying earlier costs orders progressively and would prefer not to have to face another one, but a costs order was not resisted. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 September 2008
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