SZFVM v Minister for Immigration

[2005] FMCA 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFVM v MINISTER FOR IMMIGRATION [2005] FMCA 850

MIGRATION – Application for summary dismissal – whether res judicata, Anshun estoppel or abuse of process established. 

Migration Act 1958 (C’th), s.425
Judiciary Act 1903 (C’th), s.39B

Muinv Refugee Review Tribunal, Liev Refugee Review Tribunal [2002] HCA 30
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Somander vMinister for Immigration & Multicultural Affairs (2001) 78 ALR 677
SZBJM vMinisterforImmigration& Multicultural & Indigenous Affairs [2004] FCA 404
Applicant A321 of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Walton v Gardiner (1993) 177 CLR 378

Applicant: SZFVM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 569 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

1. That the application filed on 7 March 2005, be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules as an abuse of process of the Court.

2. Alternatively, the proceedings are barred as res judicata by virtue of the doctrine of Anshun estoppel. 

3. The applicant pay the respondent’s costs fixed in the amount of $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 569 of 2005

SZFVM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. An application is before the court for summary dismissal of an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The background to this application is that the applicant applied for a protection visa on 14 January 2000.  The application was refused and he sought review by the Tribunal. 

2. On 20 February 2003 the Tribunal handed down a decision affirming the decision of the delegate not the grant the applicant a protection visa.  On 28 March 2003 the applicant filed an application in the Federal Court seeking review of the Tribunal decision.  Subsequently he filed an amended application.  At that time he had the assistance of representation by counsel. 

3. The grounds of the amended application were first that the Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction by committing jurisdictional error. The particulars of the claim were that the Tribunal failed to afford the applicant procedural fairness in that its rejection of expert evidence presented by the applicant stating that he was unfit to give evidence at the Tribunal hearing without seeking contrary expert evidence displayed apprehended bias; and secondly that the Tribunal failed to provide the applicant with a hearing at which he was fit to give evidence in breach of section 425 of the Migration Act 1958 (C’th). 

4. On 22 September 2003 Branson J dismissed the application to the Federal Court.  Her Honour found that no jurisdictional error was established on the bases contended for in the amended application. 

   
   On 10 October 2003 the applicant filed a notice of appeal in the Full Court of the Federal Court.  In addition to complaints about the decision of Branson J, the applicant relied on Muin v Refugee Review Tribunal,Lie v Refugee Review Tribunal

   [2002] HCA 30 and other recent High Court and Federal Court cases.

5. On 19 December 2003 Emmett J ordered the appellant to file an amended notice of appeal by a certain date, and ordered that if he failed to do so his appeal would be dismissed.  He did not do so.  On

   
   

   18 February 2004, the Full Court of the Federal Court found that as the appeal had been dismissed pursuant to the orders of Emmett J the appellant should pay the respondent’s costs of the appeal. 

6. On 15 March 2004 the applicant filed an application for special leave to appeal to the High Court of Australia.  On 21 December 2004 the High Court proceedings were deemed abandoned because the applicant had failed to comply with orders for the filing of documents.  On

   
   

   13 January 2005 the applicant filed a further application for special leave to appeal and on 10 February 2005 the High Court proceedings were again deemed abandoned. 

7. On 7 March 2005 the applicant filed an application in this court seeking review of the Tribunal decision.  That application contains 10 general and unparticularised grounds of bad faith, denial of natural justice, that the Tribunal ‘denied the evidentiary proof’ of the claim that the decision did not reflect the material facts of the claim, that the Tribunal had given a decision pre-set in the back of its mind, that the Tribunal mixed up many facts with the decision which affected the decision, that it concentrated on particular facts and ignored others, that in the findings and reasons part of the decision it did not observe the Migration Act 1958 properly, that in the hearing the interpreter’s standard was not satisfactory and was objected to, and that the Tribunal made up its mind without any inquiry regarding the claim and did not believe the applicant's genuine claim. 

8. The respondent filed an application on 16 March 2005 seeking summary dismissal.  An amended application was filed by the respondent in court as foreshadowed in earlier written submissions.  The principal grounds on which it is sought that the application be dismissed are, in the alternative, res judicata, Anshun estoppel or abuse of process. 

9. Res judicata applies where an applicant seeks to re-litigate the same claims for relief that were raised in earlier proceedings.  The doctrine applies in relation to judicial review of administrative proceedings.  Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342, and Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51.

10. As Merkel J stated in Somander vMinister for Immigration & Multicultural Affairs (2001) 78 ALR 677 at [53] the identity of the claims for relief or causes of action in question “is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded.” Also see SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [20] - [21] and Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [18]. In the latter case Wilcox J suggested that the central question was whether the applicant’s second application sought to re-litigate the same claim for relief as in the earlier proceeding, and stated that it mattered not that the re-litigation was intended to be based upon an argument that was not previously advanced.

11. It is clear that, at the least, grounds 2 and 8 of the latest application (dealing with natural justice and a failure to observe procedures of the Migration Act 1958), are claims that were raised by the first and second particulars of the amended application filed in the first proceedings in relation to which final judgment was given by Branson J on

    
    

    22 September 2003. 

12. It is not strictly speaking necessary for me to consider in more detail the precise limits of the doctrine of res judicata in relation to the other general and unparticularised grounds.  On the broad principles considered in SZBJM and Applicant A321, the doctrine of res judicata is applicable but in any event it is clear that, in the alternative, the doctrine of Anshun estoppel precludes the applicant from raising any of the grounds pleaded in the application. 

13. Anshun estoppel prevents a party from raising in new litigation matters which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to rely upon it. 

14. In this instance I am satisfied that it was open to the applicant to have raised any or all of the unparticularised grounds in the present application in the prior proceedings.  I note that he had the assistance of counsel at the time.  It was open to him to raise these grounds and it is unreasonable for him not to have done so at that point in time. 

    
    

    I have reached this conclusion on the basis of considering all of the circumstances and material before me.  I do not consider that special circumstances are present which would enliven any discretion to refrain from the application of the Anshun estoppel doctrine.  None have been advanced by the applicant and, while mindful of what was said by the Full Court of the Federal Court in BC vMinister for Immigration & Multicultural Affairs [2001] FCA 393, I do not consider that there are special circumstances in this case. See Applicant A210 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs;  Applicant A321 of 2002v Minister for Immigration & Multicultural & Indigenous Affairs, and SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs. 

15. In those circumstances then Anshun estoppel applies and the applicant is estopped from pleading the grounds which he now seeks to raise in the present proceedings. 

16. In the alternative, if I am wrong in what I have said in relation to res judicata and/or Anshun estoppel, I would hold, as Wilcox J held in Applicant A321 of 2002v Minister for Immigration & Multicultural & Indigenous Affairs at [19], that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term as discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393. The applicant seeks to re-litigate a matter that was dealt with by the Federal Court in which there was an appeal, and two special leave applications to the High Court. The claim for relief he makes, as I have indicated above, is essentially the same. He seeks to evoke a jurisdiction equivalent to that in section 39B of the Judiciary Act 1903 (C’th).  The substance of the claims that he now makes have been dealt with by the Federal Court.  His matter was finally resolved by the decision of Branson J and the rejection of the appeal by the Full Court. 

17. Moreover, on the material before me, the grounds as expressed in the current application do not raise an arguable basis for relief.  (See SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs).  The applicant has not attempted to point to any error by the courts in previous proceedings, and on the material before me there is no arguable basis for the general and unparticularised grounds raised in the application.  The present application is an abuse of process.  This makes it unnecessary to consider the alternative bases on which orders are sought by the respondent, being that no reasonable basis for the application exists and an objection to competency. 

18. In these circumstances it is appropriate to make the relevant orders sought by the respondent.  One of the orders that is sought is an order for costs and I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has effectively been unsuccessful.  The respondent seeks costs in the sum of $2,300.  The applicant states that he has no money and no work.  Such matters do not warrant not making an order for costs, although they may be taken into account by the respondent in determining how and when to seek to recover any costs.  I consider that the amount sought is appropriate in light of the nature of this and other similar matters. 

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

Associate: 

Date:  27 June 2005