SZFRF v Minister for Immigration
[2005] FMCA 854
•15 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRF v MINISTER FOR IMMIGRATION | [2005] FMCA 854 |
| MIGRATION – Application for summary dismissal – whether principles of res judicata, Anshun estoppel or abuse of process applicable. |
| Migration Act 1958, ss.39B and 474 Federal Magistrates Act 1999 (C’th), ss.14 and 15 |
| NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 228 Muinv Refugee Review Tribunal, Liev Refugee Review Tribunal [2002] HCA 30 Plaintiff 157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 Somander v Minister for Immigration & Multicultural Affairs (2001) 78 ALR 677 Applicant A27 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Applicant A210/2002 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 579 Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 SZBJM v Minister for Immigration& Multicultural & Indigenous Affairs[2004] FCA 404 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 BC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 221 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | SZFRF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 335 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules as an abuse of process.
Alternatively, the proceedings are barred as res judicata or by virtue of the doctrine of Anshun estoppel.
That the applicant pay the respondent's costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 335 of 2005
| SZFRF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an interlocutory application filed by the respondent on 29 April 2005 seeking an order that an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) filed by the applicant on 8 February 2005 be dismissed pursuant to the jurisdiction conferred by section 14 and/or 15 of the Federal Magistrates Act 1999 (C’th). It is necessary to set out at some length the background to these proceedings. The applicant who is a citizen of India, arrived in Australia in January 2000. He applied for a protection visa. That application was refused and he sought review by the Tribunal. On
30 April 2002 the Tribunal handed down a decision affirming the delegate's decision. On 3 May 2002 the applicant filed an application for review of the Tribunal decision in the Federal Court of Australia. That application contained seven very generally expressed and unparticularised grounds: that procedures under the Migration Act were not observed, that the Tribunal ignored the merits of the claim, did not take into consideration the real fear of persecution on religious and political grounds, that it made errors to decide ‘the fate of the applicant’s claim’, misjudged the claim, took into account irrelevant matters and did not have any ‘authorities to justify this matter’. It was accompanied by an affidavit which took issue with the merits of the decision and contained again a number of very generally expressed grounds (including that the Tribunal deprived the applicant of natural justice and made a decision which was preset in its mind).
On 1 August 2002, after the matter had been transferred to this court, Federal Magistrate Driver dismissed the application, finding that no jurisdictional error attended the Tribunal decision. In the course of his reasons for judgment his Honour considered not only the grounds in the original application for review but also matters raised in the applicant's written submissions and orally before the court (including his unparticularised claim of a denial of natural justice and a claim that the Tribunal should have made inquiries in India). His Honour found no basis on which to grant prerogative relief. It was therefore unnecessary for him to express any view on the operation or interpretation of the privative clause in section 474 of the Migration Act 1958.
On 21 August 2002 the applicant filed a notice of appeal in the Federal Court. The grounds were that Federal Magistrate Driver had made certain errors. The notice of appeal also raised further issues about the Tribunal decision which overlapped with those already raised. In particular the applicant claimed that he was deprived of natural justice as he was not provided with an opportunity to comment on materials relied on by the Tribunal. On 6 December 2002 Justice Moore dismissed the appeal, for reasons consistent with the view of the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 228 as to the effect of s.474 of the Migration Act 1958.
On 18 December 2002 the applicant applied for special leave to appeal to the High Court of Australia. On 26 June 2003 the special leave application was deemed abandoned because the applicant had failed to comply with provisions of the High Court Rules, relevantly in relation to filing and serving a summary of argument and draft notice of appeal. On 11 July 2003 the applicant made a further application for special leave to appeal to the High Court. Although he swore an affidavit stating that he would submit the documents required, such application was deemed abandoned on 28 January 2004 the applicant having failed to comply with provisions of the High Court Rules for the filing of documents. On 13 February 2004 another application for special leave to appeal was made which was discontinued on 27 January 2005, almost a year later.
The applications for special leave to appeal referred not only to claimed errors by the Federal Court but also claimed that the case was on all fours with the High Court decision in Muinv Refugee Review Tribunal, Liev Refugee Review Tribunal [2002] HCA 30.
Subsequently the applicant filed an application for judicial review in this court on 8 February 2005. The grounds in that application are as follows:
“The tribunal made his decision in bad faith. The tribunal deprived me of the natural justice. The tribunal denied the evidentiary proof of my claim. The tribunal’s decision did not reflect the material facts of my claim. The tribunal has given a decision, which was preset in the back of it’s mind. The tribunal mixed up many facts with this decision which affected the decision. The tribunal concentrated in particular fact, while ignored many other facts in this condition. The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim. My application is late. I refer to high court case 157/2002 v MIMIA. I will provide more details of grounds later.
On 29 April 2005 the respondent filed an interlocutory application seeking that the proceedings should be dismissed on the alternative bases that proceedings were an abuse of process, that they were barred on the basis of res judicata and/or Anshun estoppel or that the application disclosed no reasonable cause of action or was incompetent.
In response the applicant filed three documents ‘Applicant’s argument for notice of motion’ which includes a transcript of the Tribunal hearing in English, ‘Submissions Reply to the Interlocutory Application’ and ‘Applicant’s written argument for the competency hearing dated 15 June 2005’ which largely repeats the claims in the first document. These documents raise a Muin claim, provide particulars of a claim of a lack of procedural fairness based on the fact that the Bengali interpreter in the Tribunal hearing was Bangladeshi rather than Indian and make a number of general assertions of error by the Tribunal. In relation to the interlocutory application the applicant contends that res judicata and/or Anshun estoppel are not applicable ‘because this is not a matter of that jurisdiction. My claim is based on UN Convention and Protocol.’
The applicant claims that he has not been able to present an effective argument in the past due to lack of knowledge of formal court procedures and that he has never had a real opportunity to express and argue his case in previous litigation. He claimed that he could not communicate with lawyers because of his poor English (although it appears that he was not represented by lawyers in any relevant proceedings).
The respondent contends that the proceedings are barred within res judicata principles. It is well established that res judicata applies where an applicant seeks to re-litigate the same claims for relief that were raised in earlier proceedings. The question is whether the cause of action relied on is the same cause of action which has been determined in earlier proceedings. The identity of the claims for relief or causes of action is to be determined by matters of substance and not the form of the proceeding or the way it is pleaded (Somander v Minister for Immigration & Multicultural Affairs (2001) 78 ALR 677 at [53], also see Applicant A27 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919). It has been held that res judicata and Anshun estoppel can apply to judicial review of administrative decisions (Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722).
The grounds that are raised in the application filed on 8 February 2005 and in the applicant’s submissions, while not expressed in precisely the same terms in all respects, nonetheless can be seen to involve an attempt to re-litigate the same claims for relief as were raised in earlier proceedings. See Applicant A210/2002 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 579 and Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306.
The applicant seeks to raise the same issues as well as invoke essentially the same jurisdiction as that invoked in earlier proceedings, in that he claims in effect that the Tribunal decision involved a jurisdictional error, that the decision was not lawfully made and that the matter should be reconsidered by the Tribunal. Such a claim was rejected by this Court and the Federal Court and is not open to be re-litigated.
The initial application was made to the Federal Court under section 39B of the Judiciary Act and was remitted to the Federal Magistrates Court. As in Applicant A321/2002 the applicant now seeks to re-litigate the same claim for relief. In Applicant A321/2002 Wilcox J stated at [18] that “It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced” and held that the principle of res judicata applied. On this approach res judicata would apply to all of the applicant’s claims.
It may well be that there have been some changes to the law and the basis on which the applicant sought relief and in the manner in which his claims were phrased in his original application and affidavit differs from that adopted in the present proceedings (not only in his present application but also in the extensive written submissions) but each claim relies upon the facts of the Tribunal's decision and that the Tribunal gave its decision for the reasons that it did (see SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [21]). As Madgwick J pointed out (when sitting as the Full Court of the Federal Court) in SZBJM at [21]:
The way a claim is argued or even expressed in terms of the actual relief claimed does not affect the substance of the claim that arises out of the asserted facts and their asserted legal effect.
At the least, res judicata is established in relation to the claims in the application of 8 February 2005. The first second and fifth claims of bad faith, a lack of natural justice and a ‘preset decision’ repeat the claims made in the proceedings of 3 May 2002 as explained in the affidavit filed on 3 May 2000 and dealt with by Federal Magistrate Driver. The third and fourth claims about the decision repeat ground 2 in the first application (and provide no bases for review). The sixth ground mirrors prior grounds 4, 5 and 6. The seventh ground repeats prior ground 6 and the eighth ground was raised by former ground 1, the affidavit and oral submissions and dealt with by Federal Magistrate Driver.
I am satisfied that the applicant seeks to re-litigate the grounds raised in his original application by the generally expressed grounds in his present application and that res judicata applies in relation to such matters.
If I am wrong in saying that there is technically res judicata in relation to such claims, then I am satisfied that, together with all the other matters which the applicant now seeks to raise, his present claims come within the principles of Anshun estoppel. Anshun estoppel was discussed at length in Wong. It prevents a party from raising in subsequent litigation issues which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to rely upon them. It remains open to the court to allow the later proceedings to continue if special circumstances exist which warrant a departure from the prima facie operation of estoppel: see Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 in particular at 602-604 per Gibbs CJ, Mason and Aickin JJ.
I am satisfied that the grounds in the application filed on 8 February 2005 could have been raised in the earlier application and that it was unreasonable for the applicant not to have done so (insofar as aspects of such claims are not in any event barred by res judicata). The applicant also raised in the course of the proceedings two matters which were not referred to in the first application or in his present application. The first of these is an express reliance on the principles in Muin and Lie (which was raised in the application for special leave to appeal which the applicant did not pursue). In one sense it can be said that that matter was raised in the first application before Federal Magistrate Driver, insofar as it is but an aspect of a general claim of a denial of natural justice (and hence within res judicata principles). While procedural fairness or natural justice was not referred to in precisely those terms in the original application itself, there was a reference to failure to observe procedures and the accompanying affidavit claimed that the Tribunal deprived the applicant of natural justice. Federal Magistrate Driver dealt with such unparticularised claim. Secondly, the applicant now raises for the first time a claim that he was deprived of natural justice because the interpreter in the Tribunal hearing was a Bangladeshi speaker of Bengali rather than an Indian. Again, it might be said that such claim was raised by the natural justice claim in the initial proceedings, albeit not in those terms. In any event, I am satisfied in relation to these and the other extensions or particularisation of claims to be found in the applicant’s written submissions, that these raise matters which properly should have been raised in the earlier litigation.
I am not persuaded that there was anything preventing the applicant from raising either the precise claims in his present application or the new kind of procedural fairness claims. While Muin and Lie had not been decided by the High Court at the time of the original application this did not prevent the applicant from raising a procedural fairness claim either based on facts such as in Muin or Lie or on the basis of what he now says was a difficulty with the interpreter. In all the circumstances it was unreasonable for him not to do so. He did not do so and in my opinion this is a clear case of Anshun estoppel in relation to such matters as well as to the other grounds in the present review application and submissions.
I am not satisfied the applicant should be relieved from the prima facie operation of that doctrine. Having examined all of the circumstances (and being mindful of what was said by the Full court of the Federal Court in BC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 221) I am not persuaded that in the particular circumstances of this case there are special circumstances. In particular, consistent with what was said in Applicant 210/2002 and SZBJM, although the decisions of the High Court in Muin and indeed in Plaintiff S157/2000 were not handed down until after the decision of Federal Magistrate Driver I do not consider that this constitutes special circumstances such as to enliven any discretion as I might have to refrain from applying the principles of Anshun estoppel.
As was said in Applicant A210 at [16] it was open to the applicant to raise the claim of procedural fairness on either of these bases now contended for in the prior proceedings notwithstanding that on the state of the authorities at that time the claims if made as a discrete claim may not have succeeded. They were claims that could have been brought and pursued. See Jacobson J in Applicant 210/2002 at [16].
Finally, if that be incorrect, I would hold that the applicant's attempt to relitigate the same claims for relief on the basis of jurisdictional error by the Tribunal is an abuse of process within the meaning of that term as discussed in Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ. See to the same effect Wilcox J in Applicant A321/2002 at [19]. The applicant is attempting to re-litigate the same Tribunal decision that was previously found to be a privative clause decision by the Federal Magistrates Court and the Federal Court. He initiated but did not pursue three special leave applications. He seeks to agitate what amounts to the same basis for the claim and essentially the same grounds of review (although the ‘particulars’ differ) including those raised in the special leave applications.
Moreover, importantly, no arguable basis for any of the grounds of review raised has been established. See SZBJM v Minister for Immigration for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404. The present application contains unparticularised grounds of review not supported on the material before the court. The argument that he makes in relation to Muin and Lie suffers from the defect that there is nothing to suggest that the factual basis for such a claim is present. I have also considered the more recent claim that he now makes about the interpreter not being an Indian Bengali. In that respect the applicant annexed to one of his written submissions the transcript of the Tribunal hearing. It is notable from that transcript, that contrary to the applicant's claim that he objected to a Bangladeshi Bengali speaking interpreter, there is nothing in the transcript to indicate that any such objection was made or importantly that any such difficulties as are now claimed arose such as to provide any basis for an arguable case of a lack of procedural fairness (or breach of s.425). In those circumstances, while the applicant has filed extensive submissions that raise various issues, this is a case in which I am satisfied that these proceedings are an abuse of process and should be dismissed. Accordingly, I propose to dismiss the applicant's substantive application. Hence, I do not have to consider whether no reasonable cause of action is disclosed in the application.
The only other issue is that the respondent also filed a notice of objection to competency and seeks to rely on that. However I consider that that is a matter that would more properly be considered in a final hearing as to the existence of any jurisdictional error, had I not been satisfied that this application should be summarily dismissed.
I will make the relevant orders that are sought by the respondent.
RECORDED : NOT TRANSCRIBED
The respondent has been successful in the application for summary dismissal and seeks costs in the sum of $3,000. There is nothing in the circumstances before me to warrant a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 June 2005
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