SZGIX v Minister for Immigration
[2005] FMCA 1121
•9 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1121 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a Catholic left handed cricketer in India – summary dismissal of judicial review application for jurisdictional reasons – RRT decision previously found by the Federal Court to be free from jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| STWB v Minister for Immigration [2004] FCA 858 STWB v Minister for Immigration [2004] FCA 1165 |
| Applicant: | SZGIX |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1306 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 9 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms C Gray Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the application.
The judicial review application is dismissed on the basis that the Court has no jurisdiction to hear it.
The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal is to be accepted for filing by the Court registry, except by leave of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1306 of 2005
| SZGIX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency filed on 1 June 2005 and a notice of motion filed on 2 June 2005. The Minister for Immigration seeks the summary dismissal of an application for judicial review filed on 20 May 2005. That application sought review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 9 October 2001 and was handed down on 6 November 2001. The RRT refused the applicant a protection visa. Relevant background facts are set out in written submissions prepared on behalf of the Minister. I adopt as background paragraphs 4-11 of those written submissions:
The applicant was an Indian citizen and a Roman Catholic who played cricket for various clubs in India as a left-handed bowler. He claimed that he was targeted for harm by Hindu cricketers and members of the RSS because they were unhappy with his sporting activities and success. He was assaulted and attacked on three occasions in 1998, February 1999 and April 1999. He reported one assault but the police took no action.[1]
The RRT rejected the applicant’s claims of harm because it did not accept that he suffered persecution because of his religion[2] and because it did not accept that the government authorities in India would not afford him adequate protection.[3]
Previous proceedings
On 6 November 2001, the RRT handed down a decision affirming the decision of the delegate to refuse the applicant a protection visa.[4]
On 1 March 2004, the applicant filed an application for judicial review in the Federal Court of Australia. The proceedings were given proceedings number S32 of 2004. The application for judicial review pleaded that the RRT breached the rules of natural justice, denied the applicant procedural fairness, made errors of law, did not observe required procedures of law, improperly exercised its power, did not have any evidence or other material to justify the making of decision and the decision was contrary to law and involved jurisdictional error. The particulars provided essentially pleaded that the applicant was not afforded a fair hearing by the RRT and the RRT did not give him an adequate opportunity to present his case.[5]
On 31 May 2004, the Honourable Justice Selway ordered that the application be dismissed with costs.[6]
On 2 July 2004, the applicant filed in the Federal Court of Australia an application for extension of time to file and serve a notice of appeal from the judgment of Justice Selway dated 31 May 2004 and a supporting affidavit The proceedings were given proceedings number S146 of 2004. The applicant pleaded that Justice Selway erred in law by finding that the RRT had not made a jurisdictional error in reaching its conclusion.[7]
On 10 September 2004, the Honourable Justice Finn ordered that the application for leave to file and serve a notice of appeal be refused with costs.[8]
On 20 May 2005, the applicant filed the current proceedings in the Federal Magistrates Court of Australia which were given proceedings number SYG1306 of 2005. The current application pleads that the Tribunal incorrectly applied the law, the applicant was denied procedural fairness and the RRT member relied on old and outdated material and “one-sided information.”
[1] Affidavit, exhibit CJG1, pp 24 – 26, 184.7 – 185.3.
[2] Affidavit, exhibit CJG1, p 196.1
[3] Affidavit, exhibit CJG1, p 197.6
[4] Affidavit, exhibit CJG1, pp 181 - 200
[5] Affidavit, annexure B, pp 5 - 10
[6] Affidavit, annexure D, pp 17 - 23
[7] Affidavit, annexure E, pp 24 - 29
[8] Affidavit, annexure G, pp 32 - 37
The Minister's motion and objection to competency are supported by the affidavit of Catherine Jane Gray made on 1 June 2005. The applicant opposes the motion and objection to competency. He relies on his judicial review application and supporting affidavit. He also filed a document headed “Amended Application” on 18 July 2005. When I explored with the applicant in argument what the status of that document was we agreed that I should treat it as written submissions seeking to explain his application.
The Minister contends that the Court does not have jurisdiction to review the RRT decision because the decision is a privative clause decision and because the judicial review application was lodged outside the 28 day time frame prescribed by s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). Alternatively, or in addition, the Minister seeks the summary dismissal of the judicial review application on the basis of res judicata, issue estoppel, Anshun estoppel and abuse of process.
In her oral submissions Ms Gray briefly explained the written submissions. The applicant sought at some length to explain why he is dissatisfied with the decision of the RRT. Essentially, these were disputes about the merits of the RRT decision. He is also concerned about the fairness of the RRT hearing but that issue has already been dealt with by the Federal Court. In my view, there is no reason why I should not adopt the reasoning of Selway and Finn JJ who have already decided that the decision of the RRT was fair. I agree with and adopt paragraphs 12 through to 17 of the Minister's written submissions:
A notice of objection to competency was filed by the respondent in these proceedings on 1 June 2005 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.
On 6 November 2001, the RRT handed down a decision affirming the decision of the delegate to refuse the applicant a protection visa. The current application was filed on 20 May 2005 and the applicant acknowledges in the application that he was notified of the RRT decision on or about 6 November 2001. The current application was therefore filed some three years and six months well outside the 28 day period. Accordingly, there is non compliance with s.477(1A) of the Act.
Insofar as s.477(1A) of the Act refers to a “privative clause decision”, Justice Selway dismissed the applicant’s previous proceedings and stated at paragraph 6 of his written reasons:
The applicant claims that he was not afforded a fair hearing by the Tribunal. He says that the Tribunal did not give him an adequate opportunity to present his case. On the facts of this particular case, the claim is plainly untenable.
Further, Justice Selway stated at paragraph 8 of his written reasons:
In these circumstances, it is perfectly clear that the applicant was not denied procedural fairness and, of course, even if he was, the procedural fairness did not go to the issue of protection, which by itself was conclusive. It follows that this application must be dismissed.
On 10 September 2004, Justice Finn refused an extension of time for leave to file and serve a notice of appeal and stated at paragraph 15 of his written reasons:
It is clear that the applicant in fact is seeking no more in the appeal he wishes to mount than a merits review of the Tribunal’s decision. Such review, of course, is impermissible in this Court. It is equally clear that the primary judge has committed no arguable appellable error. If leave was granted the appeal would be doomed to failure.
Accordingly, the RRT decision handed down on 6 November 2001 should properly be regarded as a “privative clause decision.” 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 accordingly has no jurisdiction to hear the application.
While I do not consider myself strictly bound by the two decisions of the Federal Court they are highly persuasive authority and I should follow them unless I were satisfied that they were clearly wrong. I am not so satisfied. While the Federal Court was primarily dealing with issues of procedural fairness, the effect of those decisions is that the RRT decision has already been found to be a privative clause decision. The applicant has not in these proceedings raised any issue that requires a further hearing. On the contrary, his present application seeks to re-visit the issue of procedural fairness and seeks to dispute the merits of the RRT decision.
I accept that the RRT decision is a privative clause decision. It follows that the application was not filed within time and the Court has no jurisdiction to further entertain it.
Even if I were wrong in that finding, the principles of res judicata, issue estoppel and Anshun estoppel would apply. The issues now sought to be raised in this Court either were raised in the earlier Federal Court proceedings or could have been. I agree with and adopt for the purposes of this judgment paragraphs 19-24 of the Minister's written submissions:
Res judicata
The doctrine of res judicata applies to the present application because it seeks review of the same RRT decision that was the subject of the applicant’s previous judicial review application. The substratum of facts giving rise to the right to review are the same, the substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not differ in any material respect. Res judicata is a complete bar to the application and the Court has no discretion to allow the matter to continue. [9]
Issue estoppel
The doctrine of issue estoppel also applies to the current application as issues raised in this application have previously been put in issue and determined between the parties.
Ground 1 in the current application pleads that the RRT decision involved an error of law because it incorrectly applied the law to the facts. The application filed on 1 March 2004 in proceedings S32 of 2004 also sought review on the basis that the “Decision involved an error of law,” “procedures that were required by law to be observed in connection with the making of the Decision were not observed,” “the making of the Decision was an improper exercise of the power conferred by the enactment” and “the decision was otherwise contrary to law.”
Ground 2 in the application pleads procedural unfairness, which was pleaded in ground 2 of the application filed on 1 March 2004. The third ground stating that the RRT relied on old, outdated and “one‑sided” information would fall within any of the broad grounds pleaded in the application filed on 1 March 2004.
Anshun estoppel
In any event, the proceedings are at least barred by the operation of the doctrine of Anshun estoppel, which applies as the matters put forward in the current proceedings could have been put in the earlier proceedings.[10] Anshun estoppel prevents a party from raising in new proceedings matters that properly belonged to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence.[11]
Accordingly, to the extent that the grounds in the current application were not actually raised in the applicant’s previous proceedings in the Federal Court, they could have been so raised. In addition, the applicant has not established “special circumstances” that would justify the Court exercising its discretion not to apply the Anshun principle.[12]
[9] See: Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 at 397; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356 per Fisher J and at 365 per Ryan J; Somanader v Minister for Immigration [2000] FCA 1192 (24 August 2000) per Merkel J; Re Ruddock; ex parte LX [2003] FCA 561 per Heerey J at [48].
[10] Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602
[11] Wong v Minister for Immigration [2004] FCA 51 at [49]; Daniel v Minister for Immigration [2004] FCA 21 at [25].
[12] BC v Minister for Immigration [2002] FCAFC 221 at [22] – [30].
I also consider that by making this further application for judicial review the Court's process has been abused. As I have already noted the present judicial review application raises nothing new. The applicant was tardy in his proceedings in the Federal Court. He is even more tardy in these present proceedings. The Minister should not be vexed by the repeated bringing of applications to review the same RRT decision especially when the multiple applications raise the same or essentially the same grounds.
I find that the present judicial review application is vexatious for the purposes of rule 13.10(b) of the Federal Magistrates Court Rules2001 (Cth). I accept the Minister's submission that a vexatious application is an abuse of process. (See Walton v Gardiner (1993) 177 CLR 378 at 393, see also Rogers v R [1994] 181 CLR 251 at 255, 256 and Shu v Minister for Immigration [1997] 78 FCR 314 at 323-326). In the light of the above findings I will order that the Refugee Review Tribunal is to be joined as the second respondent to the application. The judicial review application is dismissed on the basis that the Court has no jurisdiction to hear it. The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal is to be accepted for filing by the Court registry except by leave of the Court.
Costs should follow the event in this case. In the light of my finding of an abuse of process, the Minister seeks costs on an indemnity basis. Ms Gray tells me that the Minister has incurred costs probably exceeding $5,200 but, leaving room for error, the Minister seeks costs fixed in the sum of $5,000. I accept that that is a fair estimate. There have been three hearing events in this case including today's hearing. The Minister has borne the cost of a lengthy affidavit as well as the notice of motion and notice of objection to competency and written submissions. The work undertaken on behalf of the Minister is at least equal to that which would have been necessary for a final hearing. The applicant tells me that he is impecunious. As has been repeatedly observed, that is not a reason for the Court to refrain from making a costs order. I accept that, having found an abuse of process, it would be appropriate to order payment of costs on an indemnity basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application on an indemnity basis, which I fix in the sum of $5,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2005
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