SZGIT v Minister for Immigration - [2005] FMCA 1543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIT v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1543

MIGRATION – Refugee – res judicata – issue estoppel – anshun estoppel – reasonable cause of action – abuse of process.

Migration Act 1958, ss.477(1A), 477(1)(a), 474, 486A, 424A
Australian Constitution, s.75(v)
Federal Magistrates Court Rules 2001, rr.13.10, 21.02(2)(a)

Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2
SZARC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA Transcripts 264
Somanader v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1192
Re: Ruddock Ex Parte LX [2003] FCA 561
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1679
SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 759
SZCXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1650
Walton v Gardener (1993) 177 CLR 378
SZBIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 255

Applicant:

SZGIT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1297 of 2005

Judgment of:

Nicholls FM

Hearing date:

16 September 2005

Date of Last Submission:

1 September 2005

Delivered at:

Sydney

Delivered on:

16 September 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. J. Bautista

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The Notice of Objection to Competency filed on 24 May 2005 is upheld and the application is dismissed as incompetent.
In any event, the respondent’s Notice of Motion is upheld and the application is dismissed.
That no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 7 January 2003 be accepted for filing except with Leave of the Court.
The applicant pay the first respondent’s costs set in the amount of $3000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1297 of 2005

SZGIT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore/Revised from Transcript)

I have before me an application filed in this Court on 19 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 November 2002 and handed down on 7 March 2003 to affirm the decision of a delegate of the respondent Minister made on 16 February 2001 to refuse a protection visa to the applicant. The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The applicant is a citizen of Bangladesh and claimed to fear persecution in that country because he is an atheist and because of his association with progressive writers in Dhaka.
The matter came on before me today by way of application filed by the first respondent on 30 May 2005, seeking an order dismissing the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. The respondent sought that the application be dismissed on the basis that:
(a)The doctrine of res judicata applies and is a complete bar to the application.
(b)The doctrine of issue estoppel applies and is a complete bar to the application.
(c)Anshun estoppel applies and there are no special circumstances to justify its non-application.
(d)Pursuant to Part 13.10(a) of the Federal Magistrates Court Rules 2001, the application fails to disclose a reasonable cause of action; and
(e)Pursuant to Part 13.10(c) of the Federal Magistrates Court Rules 2001, the proceedings are an abuse of process.
(f)That no further application by the applicants to review the decision of the Refugee Review Tribunal handed down on 7 January 2003 be accepted for filing except with leave of the Court.
(g)That the applicant pay the respondent’s costs on an indemnity basis.
At the hearing on 9 August 2005 I also had before me:
1)The affidavit of Andrea Jane Nesbitt, a solicitor in the employ of the respondent’s solicitors, sworn on 30 May 2005 and filed on the same date.
2)The respondent’s Notice of Objection to Competency filed
24 May 2005.
3)The applicant's submissions filed on 26 August 2005.
4)The respondent’s outline of submissions filed 1 September 2005.
In his application to the Court filed on 19 May 2005, the applicant lists eight grounds of review:
“1. The Tribunal made his decision in bad faith.
2. The Tribunal deprived me of the natural justice.
3. The Tribunal denied the evidentiary proof of my claim.
4. The Tribunal’s decision did not reflect the material facts of my claim.
5. The Tribunal has given a decision, which was preset in the back of it’s mind.
6. The Tribunal mixed up many facts with this decision which affected the decision.
7. The Tribunal concentrated in particular fact, while ignored many other facts in this condition.
8. The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim.”
The application is clearly formulaic in style and presentation and is similar in form to many other applications seen by the Court. It lacks particularity. No amended application giving full particulars has been filed.
The affidavit of Andrea Jane Nesbitt sworn on 30 May 2005, with relevant annexures, shows that:
·On 26 May 2003, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia at Sydney in respect of the same Tribunal decision and was given the proceedings number of SZ926 of 2003 and known as SZARC vMinister for Immigration [2004] FMCA 238.
·On 9 July 2003 the respondent filed a Notice of Objection to Competency in those proceedings.
·On 1 March 2004, Federal Magistrate Barnes ordered that the objection to competency be upheld and the application be dismissed with costs on the basis that it is incompetent.
·On 19 March 2004, the applicant filed a notice of appeal in the Federal Court of Australia, seeking review of the orders and judgment of Federal Magistrate Barnes dated 1 March 2004. The proceedings were given proceedings number N375 of 2004.
·On 10 May 2004 the first respondent filed a Notice of Objection to Competency.
·On 28 June 2004, the Honourable Justice Madgwick ordered that the respondent’s objection to competency be upheld and the proceedings were dismissed with costs.
·On 21 July 2004, the applicant filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia in proceedings number S262 of 2004, seeking leave to appeal against the judgment and orders of Justice Madgwick dated 28 June 2004.
·On 3 February 2005, the Deputy Registrar of the High Court of Australia certified that the application for special leave to appeal in proceedings S262 of 2004 was deemed abandoned.
·On 7 February 2005, the applicant filed a second application for special leave to appeal in the High Court of Australia, proceedings number S40 of 2005. On 27 April 2005 the Honourable Justices McHugh and Heydon ordered that the application for special leave to appeal be dismissed.
·On 19 May 2005 the applicant filed an application for judicial review in the Federal Magistrates Court seeking review of the same Tribunal decision.
·On 24 May 2005 the first respondent filed a Notice of Objection to Competency.
The respondent’s Notice of Objection to Competency was filed in these proceedings on the basis that the application for judicial review was filed outside the 28 day time limit imposed by s.477(1A) of the Migration Act 1958 (“the Act”). The current application was therefore filed some two years and four months outside the 28 day period. The respondent submits that as the applicant has filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no power to extend that time, and has no jurisdiction to hear the application.
Before me today the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language.
Ms. Bautista appeared for the respondents and pressed the issue of jurisdiction. The submission was that the respondents relied on the Notice of Objection to Competency filed in these proceedings on
24 May 2005 on the basis that the application for judicial review now was filed outside the 28 day time limit as prescribed in s.477(1A) of the Act. The Tribunal decision now complained of was handed down on 7 January 2003, and the current application to this Court was filed on 19 May 2005. The applicant in his application to the Court acknowledges that he was notified of the Tribunal decision on
7 January 2003. As the current application to this Court was filed well over two years outside the 28 day period as required in s.477(1A) of the Act, in a written document filed in this Court on 26 August 2005 and headed “Applicant Authorities”, the applicant makes a reference to the High Court authority of Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 and submits that the Court does have jurisdiction to consider his current judicial review application. In Plaintiff S157/2002 the High Court was asked to consider whether relevantly ss.474 and 486A of the Act were invalid in relation to a proposed application by the plaintiff for relief in that matter under s.75(v) of the Australian Constitution. Section 474(1) provides:
“A privative clause decision:
a)is final and conclusive
b)must not be challenged, appealed against, reviewed, quashed or called in question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.”
Unanimously, the Court held that s.474 of the Act is valid but does not apply to a decision that involves jurisdictional error. Clearly, what the applicant is attempting to argue is that the effect of the High Court's judgement is that s.474(1) of the Act, does not apply to his case because presumably the Tribunal’s decision is affected by jurisdictional error and is therefore not a privative clause decision.
The critical issue therefore, is that before a Tribunal decision can be said to be a privative clause decision to which s.474 applies, a Court must look to see whether the decision is affected by jurisdictional error. But the applicant's submissions, however, go no further and have not addressed the issue of the previous litigation involving the same applicant and the same Tribunal decision. The issue of jurisdictional error in relation to the same Tribunal decision before me now was considered by Federal Magistrate Barnes in “SZARC”, who in upholding the respondent’s Objection to Competency filed in relation to that matter, found that the Tribunal decision was not infected by jurisdictional error (Annexure “D” to the affidavit of Andrea Jane Nesbitt). FM Barnes at [20] said:
“Having considered all of the material before me, no denial of natural justice or other jurisdictional error is apparent. In those circumstances the objection to competency based on time at which the applicant filed the application must be upheld.”
The effect of Federal Magistrate Barnes’ finding, with respect, means that the Tribunal decision was a privative clause decision. Also, with respect, her decision is clearly not binding on me, but the applicant filed a Notice of Appeal to the Federal Court on 19 March 2004 (Annexure “E” to the affidavit of Andrea Jane Nesbitt) and his Honour Madgwick J., dealt with this matter as an Application for Leave to Extend Time within which to file an Application for Leave to Appeal and if that leave were to be granted as an application for such leave. In considering the matter Madgwick J., said at [3] (Annexure “G” to the affidavit of Andrea Jane Nesbitt):
“With a view to exploring constitutional considerations, the Federal Magistrate properly considered whether there was any jurisdictional error on the part of the Tribunal and concluded, for reasons given, with which I respectfully agree, that there was no such error. Accordingly, Her Honour upheld the objection to competency based on the lateness of filing of the application.”
At [5] of his Judgement Madgwick J. held:
“Not to put too fine a point on it, the applicant's legal case was quite hopeless before the learned Federal Magistrate and is quite hopeless here. The applicant filed written submissions before the learned Federal Magistrate which appear to have had little relation to the case before her and that performance has been repeated spectacularly in this Court. The Notice of Appeal had little to do with it her Honour's judgement and, as far as I can see, the written submissions have nothing at all to do with it. They are an amazing example of what electronic cutting and pasting can do. The applicant says that a named friend volunteered the information for him. It is unnecessary to say any more than that the proceedings in this Court are quite without merit and no relief, as to the substance of the matter, even if regularly sought and if mere irregularities were excused, should be granted to the applicant.”
The applicant then sought Special Leave to Appeal in the High Court of Australia (see Annexure “H”) and this was deemed abandoned (see Annexure “I”). The applicant again sought Special Leave (Annexure “J”) and this was dismissed (see Annexure “K”). McHugh J., held (SZARC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA Transcripts 264) that:
“Madgwick J. in the Federal Court correctly held that there was nothing in the Tribunal's reasons to support the applicant’s claims, and that the appeal to that Court had no prospect of success… There is nothing in the draft notice of appeal summary of argument to suggest that either the Tribunal or the Federal Court erred in their findings. As was the case in the Federal Court proceedings, it is difficult to see any correlation between the facts of this case and that applicant's written submissions. An appeal in this matter would have no prospects of success.”
In light of this, the respondent’s submission is that the Tribunal decision now before me should properly be regarded as a privative clause decision. I consider the Judgment of Madgwick J., endorsed by the High Court, to be binding on me. The Tribunal decision complained of now by the applicant has already been determined to be a privative clause decision. On that basis, and given that the application now to this Court has been filed outside the mandatory statutory time limit, this means that this Court has no power to extend the time and has no jurisdiction to hear the application. The application therefore is dismissed on that basis and the respondent’s Notice of Objection to Competency is upheld.
Notwithstanding the finding made above and the fact that the applicant has already taken this Tribunal’s decision through this Court, the Federal Court and the High Court previously, I provide the following for his benefit given that he is unrepresented before me.
By way of Notice of Motion the respondents also sought dismissal of the application to this Court on the basis that:
(a)The doctrine of res judicata applies and is a complete bar to the application.
The applicant is clearly seeking review of the same Tribunal decision that was before the Federal Magistrates Court, before the Federal Court acting in its appellant jurisdiction, and that was also considered by two judges of the High Court. The facts giving rise to the right of review are the same as in the earlier litigation, the substance of the proceedings are the same, and the relief sought on this occasion is informed by the same legal principles. The proceedings do not differ in any material respect. I note in particular that the claims put forward in the application now, in relation to the first seven claims, are identical to grounds 2 to 8 in the application made in the previous litigation.
The eighth ground is:
“The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim.”
Particularly in the absence of any specificity, and to the extent that it could be said to go beyond a request for impermissible merits review, this clearly falls within the ambit of the complaints regarding bad faith, the denial of the evidentiary proof of the applicant’s claims and the stated ground referring to the Tribunal being “preset in the back of its mind”, which could be seen as a claim of bias or the apprehension of bias. In other words, the applicant has brought nothing new to the Court this time around. Res judicata is, of course, as the respondent submits, a complete bar to the application and the Court does not have jurisdiction to allow the matter to continue: Somanader v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1192 per Merkel J., and Re: Ruddock Ex Parte LX [2003] FCA 561 per Heery J., at [48].
(b)Issue estoppel
In light of what is set out above, it is clear that each of the grounds raised in the current application before me, were raised previously in the Federal Magistrates Court and the Federal Court of Australia (The first seven are identical, the eighth is subsumed in a number of other grounds). Both those Courts found no substance in the grounds of review, and this was endorsed by McHugh and Heydon JJ. in the High Court when they dismissed the applicant’s “Special Leave Application” on the basis of it having no prospects of success.
I should also just note that in his document headed “Applicant Authorities” the applicant makes reference to the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, but was unable to explain before me the relevance of this reference. If however, the applicant is seeking to rely on the majority decision in that case regarding the manner in which information relevant to the Tribunal's decision must be put to the applicant pursuant to s.424A of the Act, then it is clear in looking at the Tribunal's decision (see “Exhibit AJN1” to the affidavit of Andrea Jane Nesbitt) that the applicant did not succeed before the Tribunal on the basis of the adverse view that the Tribunal took of the credibility of the applicant and his claims. While the Tribunal made reference in part to information contained in the applicant's application for a protection visa, it did not rely on this information to make its decision. Reference to such information may give rise to the type of problem that is created when the obligation of the Tribunal, pursuant to the majority finding in “SAAP” also seen in light of the Full Federal Court decision in Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1679, is to put such information to the applicant. Therefore, if such information is relied upon by the Tribunal in the making of its decision it must be put to the applicant in the manner specified in s.424A(2) of the Act. It is clear that in the case before me now, the Tribunal's adverse credibility finding was based on the Tribunal's assessment of the applicant's credibility and his claims as made at the hearing before it. The Tribunal found him to be a most unimpressive witness and that significant aspects of his evidence were confused and internally inconsistent and that he was unable to provide explanations for fundamental problems with his evidence and at times appeared keen to avoid answering questions. Further, the Tribunal stated that it gained the impression that the applicant would say anything he considered might advance his claims with scant regard for the truth (page 92 of “Exhibit AJN1”). These were clearly the integral findings which led the Tribunal to reject the applicant's specific claims of fear of harm in Bangladesh, and which led to the rejection of his refugee claims. As to the rest of the applicant's claims, they are totally devoid of any specificity or particularity. Nor was the applicant able to add anything when he appeared before me. The applicant’s complaint before me now has not benefited from the applicant’s extensive litigation history. It is a hopeless case which would fail if allowed to go to a final hearing. I can see no substantial basis for the application or any real question to be tried and on this basis would also have dismissed the application as having no reasonable cause of action.

The respondents also press the issue of abuse of process. The applicant has previously sought judicial review of the same Tribunal decision that is again before me. Relevantly, the respondents argued that the applicant has had a significant litigation history which includes the commencement of previous sets of proceedings in the Federal Magistrates Court, the Federal Court and the High Court. The applicant, through his current proceedings, is now seeking to replicate those proceedings. In SZCXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1650 at [11] His Honour Wilcox J., held:
“It is clearly an abuse of process for a person to re-litigate the same matter by reference to the same cause of action.”
The repeated bringing of similar applications where it would be unjustifiably vexatious or oppressive is an abuse of process: Walton v Gardener (1993) 177 CLR 378 at 393. There is an underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter. Again, I note that the applicant has had a fair opportunity to agitate any complaints or litigate any issues regarding the Tribunal decision in any of his previous proceedings, but his application to the Court on this occasion is in almost the exact same terms as put forward by him on previous occasions and has no specificity or particularity. In these circumstances, it would be open to this Court to find that this current application constitutes an abuse of process as it suffers from the same “vice” as the previous application: SZBIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 255 per Moore J. In any event, there is a public interest that there be a finality to litigation. I agree with the respondent’s submission that, in light of the applicant’s litigation history and the fact that he has also filed an identical application to his previous application, the Court can infer that the current proceedings were filed for the collateral purpose of extending his stay in Australia and not for the legitimate purpose of seeking judicial review. In my view, these proceedings are a clear abuse of process and could also be summarily dismissed on that basis.
In any event this application is dismissed in upholding the respondent’s Notice of Objection to Competency as this Tribunal decision complained of now is a privative clause decision and the application to this Court was filed well outside the relevant time period provided for in s.477(1A) of the Act.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 25 October 2005