SZFZD v Minister for Immigration - [2005] FMCA 950

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFZD v MINISTER FOR IMMIGRATION

[2005] FMCA 950

MIGRATION – RRT decision – previous unsuccessful judicial review proceeding – applicant estopped in new proceeding – application dismissed as abuse of process – direction that no new application be received.

Federal Magistrates Court Rules 2001, r.13.10(b), 13.10(c)
High Court Rules 2004, r.41.11.1
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 477(1A)

Blair v Curran (1939) 62 CLR 464
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
NAOI v Minister for Immigration [2003] FMCA 582
NAOI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 383
NAOI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 87
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant:

SZFZD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG771 of 2005

Judgment of:

Smith FM

Hearing date:

28 June 2005

Delivered at:

Sydney

Delivered on:

28 June 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr B Cramer

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Proceeding dismissed under Rule 13.10(c) as an abuse of the process of the Court.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 25 March 2003 reference number N02‑42217 shall be accepted for filing without prior leave of the Court.
Applicant to pay the respondent’s costs in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG771 of 2005

SZFZD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive proceeding in this matter is an application for judicial review filed on 30 March 2005 seeking orders allowing the applicant to have a rehearing in the Refugee Review Tribunal (“the Tribunal”) of his appeal to that Tribunal from a decision of a delegate refusing him a protection visa. The applicant’s application for a protection visa was made in November 2001 and was refused by a delegate on 14 March 2002. The Tribunal affirmed that decision on 25 March 2003.
The proceeding is listed before me today on proper notice to the applicant of an interlocutory application by the Minister. The Minister seeks an order dismissing the proceeding under r.13.10, paragraphs (b) and (c) of the Federal Magistrates Court Rules 2001, i.e. on the grounds:
(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.
The Minister also seeks an order that no further application for review of the Tribunal decision should be received by the Registry without prior leave of the Court.
The Minister relies on a history of previous litigation by the applicant challenging the validity of the present Tribunal decision.
The applicant first commenced an application under s.39B of the Judiciary Act 1903 (Cth) in the Federal Court. On 17 April 2003 the application was given number N492 of 2003, and pursuant to an order made on 17 July 2003 was transferred to the Federal Magistrates Court where it received the number SZ1371 of 2003. The application was heard and decided by Driver FM on 10 December 2003. His Honour’s judgment has the name NAOI v Minister for Immigration [2003] FMCA 582. His Honour’s judgment explains the nature of the applicant’s claims for refugee status and the reasoning followed by the Tribunal, and it is unnecessary for me to recite this again.
His Honour had before him an amended application which contained 12 grounds for review alleging jurisdictional errors in various ways. Most of them were not particularised in a meaningful manner, but with the assistance of the counsel for the Minister, his Honour distilled three points which might give rise to jurisdictional error and his Honour addressed those and did not accept them. His Honour also identified a possible area of jurisdictional error, which had not been raised by the applicant, concerning the applicant’s claims that he feared persecution as a result of his work for HIV/AIDS sufferers. His Honour found no error in relation to that area of the Tribunal’s decision. His Honour’s judgment contains express findings:
7.There is nothing in the application or amended application or in the applicant’s written or oral submissions that satisfy me that the RRT committed a jurisdictional error …
15.I find no error in this case in the failure on the part of the RRT to determine whether the applicant being forced to cease his counselling work constituted persecution. I find that no jurisdictional error was committed by the RRT.
I accept the submissions by the solicitor for the Minister to me today that the effect of his Honour’s finding of no jurisdictional error is that his Honour has implicitly or necessarily found that the Tribunal’s decision is a “privative clause decision” which is subject to the bar on relief under s.474(1) of the Migration Act 1958 (Cth), applying Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476.
The applicant appealed from the decision of Driver FM to the Federal Court, where his appeal was considered by a single justice. The applicant was represented by counsel at a hearing before Tamberlin J on 26 March 2004, and on 7 April 2004 his Honour delivered a reserved judgment dismissing the appeal (see NAOI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 383). It is clear from a reading of his Honour’s judgment that his Honour allowed the applicant’s counsel to make further arguments which had not previously been put to Driver FM. It is also clear that his Honour had in evidence the transcript of the hearing before the Tribunal, and that the fairness of the proceedings before the Tribunal was a live matter for consideration before Tamberlin J.
Once again I shall not recite the issues which were identified and addressed in the proceedings before Tamberlin J: these are fully explained in his judgment. His Honour at [6] noted Driver FM’s finding that jurisdictional error had not been established, and dismissed the appeal.
The applicant applied for special leave to appeal to the High Court of Australia on 5 May 2004 in proceeding S169 of 2004. The application sought to canvass various conclusions reached in the Federal Court, and a draft notice of appeal specifically challenged the lower court’s upholding of the Tribunal’s decision as to the reasonableness of relocation for the applicant. The High Court refused to grant special leave. In the transcript of the proceedings in NAOI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 87, at which their order was published pursuant to High Court r.41.11.1, their Honours McHugh and Heydon JJ noted:
The Federal Magistrates Court refused judicial review because it could find no jurisdictional error.
The Federal Court (Tamberlin J) dismissed an appeal. It rejected contentions that the applicant had been denied procedural fairness by reason of particular issues not being raised, that there was no evidence for some of the Tribunal’s findings, that the Tribunal had not considered the evidence cumulatively, and that the Tribunal had misdirected itself as to the meaning of “harm”.
The primary complaints in the applicant’s special leave application are that the question of whether it was reasonable for him to avoid persecution by relocating to Dhaka was not sufficiently raised with him, and that there was no evidence supporting the Tribunal’s conclusion that it was reasonable for him to relocate.
Tamberlin J’s summary of the evidence about the raising of the issue was not challenged. If that summary is correct, the issue was sufficiently raised. Further, there appears to have been some evidence to support the Tribunal’s finding.
There are insufficient prospects of success to justify a grant of special leave.
That order was published on 3 March 2005 and, as I have indicated, within a month the applicant had started proceedings afresh in this Court.
Before me today the applicant said that he thought that the arguments he wishes to raise in his new proceeding were the same arguments as had been put to Driver FM and Tamberlin J, but he affirmed his continuing opinion that the Tribunal’s decision was wrong and that he should have the chance to put forward further documents to the Tribunal. He maintained that he could not go back to Bangladesh and nor could his wife.
Notwithstanding this statement that he was not aware of any fresh argument, I did canvass with the Minister’s solicitor whether the applicant’s amended application filed in this Court on 31 May 2005 might contain in its six grounds a ground which did not appear to have been specifically argued previously.
In matters such as this, such an analysis is not easily performed, due to the absence of properly formulated particulars of grounds of application and appeal, and the latitude customarily given by courts to litigants in person. It is clear that some of the grounds in the amended application have been directly addressed by previous judgments, for example, grounds 1, 3, 4 and probably 5 and 6. However, ground number 2 says:
The Tribunal dismissed the applicant’s claim that false charges had been laid against him without putting the Tribunal’s concern to the applicant.
On my reading of the previous judgments this contention does not seem to have previously been raised by or on behalf of the applicant. However, I accept the Minister’s contention that the ground could reasonably have been raised in the earlier proceeding, given that the evidence (at least before Tamberlin J) included the transcript before the Tribunal and three large volumes of documentary evidence. The applicant today has not attempted to argue that there is any reasonable explanation why that ground was not put forward earlier, nor to point to any special circumstance allowing his failure to pursue such a ground earlier to be overlooked.
On the material before me, I have reached a firm opinion that if the present proceeding were pursued to a final hearing it would undoubtedly be dismissed on principles of Anshun estoppel as made applicable to proceedings such as the present in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242. As their Honours point out in that case, the principle of Anshun estoppel is based on the prevention of abuses of process which occur where a litigant refuses to accept the finality of a court judgment and seeks to continue litigation unreasonably. I consider that the current proceeding is an abuse of process currently, and that it is doomed to fail if it were allowed to continue.
In my opinion, a further reason for summarily dismissing the present application as an abuse of process is that the finding of Driver FM, upheld on appeal, that the Tribunal’s decision is a privative clause decision by reason of the fact that it was not affected by jurisdictional error, gives rise to a direct res judicata or issue estoppel on the well‑known principles expressed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531‑532. A similar conclusion, albeit by a slightly different pathway, was arrived at by Driver FM in proceedings upheld by Bennett J in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195.
In the present case, the issue of whether the Tribunal’s decision is a privative clause decision has been raised in the present proceeding by way of a notice of objection to competency by the respondent relying on s.477(1A). The effect of that provision is that, if the Tribunal’s decision is a privative clause decision, then the proceeding is incompetent due to being brought out of time. As I have indicated, in my opinion, that issue has been finally decided against the applicant in the previous proceeding, and is res judicata. The applicant can have no answer to the objection to competency.
For the above reasons, I am satisfied that it is appropriate in this case to conclude that the continuance of the proceeding would be an abuse of process, and that the Court should exercise its discretion to dispose of the proceeding summarily under r.13.10(c).
I also consider that the applicant’s present application and his submissions to me illustrate that he has no appreciation of the need to bring finality to his challenges to the Tribunal’s decision. I consider that his present application shows a clear disposition to commence and pursue proceedings for judicial review in relation to the present Tribunal decision without regard to their merit, and without regard to previous judicial determinations in relation to the arguments that he presents. I consider that any further proceedings of the applicant commenced by way of a fresh application filed in this Court in any of its Registries would be vexatious to the respondent, and that it is appropriate for me to direct the Registry not to receive any such application without first obtaining the leave of the Court. The Court’s power to make such an order was upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581 at [29].
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $2500.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 11 July 2005