SZGKO v Minister for Immigration

[2005] FMCA 1254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGKO & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1254

MIGRATION – Application to review decision of delegate of Minister after prior judicial review in relation to decision of Refugee Review Tribunal – Notice of Motion seeking summary dismissal – whether Anshun estoppel – whether no reasonable cause of action – whether abuse of process. 

Migration Act 1958, ss.66(4), 119
Migration Regulations
Administrative Decisions (Judicial Review) Act 1977

NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 86 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58 Twist v Randwick Municipal Council (1976) 136 CLR 106 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2004] FMCA 211 NAMG v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2003] FMCA 541 Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783 SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1065 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 Plaintiff S157 v Commonwealth (2003) 211 CLR 476 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant:

SZGKO & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1378 of 2005

Judgment of: Barnes FM

Hearing date: 27 July 2005

Last date for submission: 1 August 2005

Delivered at: Sydney

Delivered on: 8 September 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr S. Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Respondent’s notice of motion is upheld.

2. That the application filed on 27 May 2005 is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as failing to disclose a reasonable cause of action and in the alternative pursuant to Rule 13.10(c) as an abuse of process.

3. That no further application by either or both of the applicants to review the decision of the delegate of the respondent dated 23 August 2001 or the decision of the Refugee Review Tribunal handed down on 4 June 2003 be accepted for filing except with leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1378 of 2005

SZGKO & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court by way of notice of motion filed by the respondent on 9 June 2005. On 27 May 2005 the applicants filed an application for judicial review of a decision of a delegate of the respondent made on 23 August 2001 refusing to grant the first applicant a protection visa. The respondent now seeks that such application be dismissed as failing to disclose a reasonable cause of action pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules or pursuant to Rule 13.10(c) as an abuse of process.

2. The background to these proceedings is that the first applicant, who is a citizen of Bangladesh, arrived in Australia on 17 March 2001 and applied for a protection visa.  The application was refused on 23 August 2001 and the applicant sought review by the Refugee Review Tribunal (the Tribunal).  She gave birth to a child in Australia on 15 January 2002.  A separate protection visa application was lodged in the name of the child who is the second applicant in these proceedings.  That application was refused by a delegate of the respondent on 22 November 2002 and the second applicant sought review of that decision by the Tribunal.  As the claim of the second applicant was dependent on her mother’s claim the Tribunal considered these applications together.  The applicants did not attend the Tribunal hearing.  On 4 June 2003 the Tribunal handed down a decision affirming the decisions of the delegate of the respondent not to grant the applicants protection visas. 

3. On 1 July 2003 the applicants filed an application in the Federal Court of Australia seeking judicial review of the decision of the Refugee Review Tribunal.  On 6 February 2004 Allsop J dismissed the application (NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 86). The applicants appealed. On 13 August 2004 the Full Court of the Federal Court dismissed the appeal (NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208). On 1 October 2004 the applicants lodged an application for special leave to appeal to the High Court. On 27 April 2005 McHugh and Heydon JJ ordered that the application for special leave to appeal be dismissed.

4. On 27 May 2005 the applicants commenced proceedings in this Court seeking review, not of the Tribunal decision, but of the decision of the delegate of the respondent made on 23 August 2001 in relation to the first applicant. This decision related only to the first applicant. The second applicant was not yet born at that time. She was the subject of a decision of a delegate of the respondent made on 21 November 2002 which is not the subject of the present proceedings. It is not clear why the second applicant is a party to these proceedings. However in light of Rule 11.01(4) of the Federal Magistrates Court Rules 2001, nothing turns on this. For convenience the first applicant is referred to as the applicant.

5. The application of 27 May 2005 seeks orders, inter alia, redirecting the matter to the Department for further consideration according to law.  The grounds are that the delegate did not have the power to give the decision and therefore there had not been any decision at all by the delegate; that the decision was invalid and not made within the meaning of the Migration Act 1958 and the Migration Regulations; that a failure to provide a lawful decision record to an applicant according to law was a jurisdictional error and that a decision made by the delegate could be reviewed by this Court.  Reference was also made to Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 in relation to the delay in instituting proceedings.

6. On 9 June 2005 the respondents filed the notice of motion which is before the Court.  It is contended that the application filed on 27 May 2005 discloses no reasonable cause of action because:

   a)Even if there were any jurisdictional error affecting the decision of the delegate, it was “cured” by the decision of the Tribunal, which has been held not to be invalid; and

   b)In any event, the applicants are estopped on Anshun principles from attacking this decision in the present proceedings.  If it is capable of being attacked, it should have been attacked when the Tribunal’s decision was challenged. 

7. In the alternative it is contended that the delay in raising the present challenge in conjunction with the Anshun estoppel reveals an abuse of process. 

8. The essence of the respondent’s argument is that a valid Tribunal decision will ‘cure’ defect in a primary decision: see Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 and Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58, Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 at 298 – 299. The Tribunal decision has withstood challenge in the Federal Court, the Full Court of the Federal Court and an application for special leave to appeal to the High Court and has not been found to be invalid. In those circumstances it is submitted that if there is any ‘defect’, such as a jurisdictional error in the delegate’s decision it has been cured (although it is not conceded that there is any such error).

9. It is not in dispute that this Court has jurisdiction to review a decision of a delegate of the respondent not to grant an applicant a protection visa.  (See Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 but note that in that case the applicant had not sought merits review by the Tribunal (being out of time) before commencing proceedings in the High Court seeking review of the delegate’s decision). However Mr Lloyd, counsel for the respondent, contended that the Federal Court authorities cited above mean that the applicant’s present application must fail and that hence no reasonable cause of action is disclosed in her application for judicial review of the delegate’s decision.

10. Particular reliance was placed by Mr Lloyd on the decision of Wilcox J in Wu v Minister for Immigration and Ethnic Affairs.  In that case the applicant and others had applied to the respondent Minister to be recognised as refugees.  Delegates of the respondent rejected their applications.  They sought review by the Refugee Status Review Committee (RSRC).  Shortly thereafter the applicant and others instituted proceedings in the Federal Court seeking review of the primary decisions.  After the RSRC made its recommendations a more senior delegate of the respondent rejected Mr Wu’s application.  Mr Wu and others who were also unsuccessful on review then commenced further proceedings in the Federal Court seeking review of the review decisions.  The two Federal Court proceedings were dealt with by Wilcox J. 

11. An initial issue arose in Wu as to whether the Court should deal with the first proceedings which challenged the validity of the primary decisions.  Wilcox J had regard to the fact that the applications had been reconsidered de novo by different delegates and accepted that the review decisions were “freestanding decisions made on their merits without any limitations of jurisdiction” (at 298).  He referred with approval to what had been said by Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 to the effect that what matters is whether there has been a second hearing that has “cured” an earlier defect in natural justice or fairness. While his Honour recognised that there would be cases where a first-instance defect could not be readily cured (for example if a delegate wrongly refused to receive relevant material so that it was not recorded in a summary of claims and therefore not available to a review body or if the review was limited in some way, for example, if it was available only in respect of a question of law), the case before him was not such a case. Hence, it was unnecessary to determine whether the primary decisions were attended with legal error. Rather his Honour considered whether any of the grounds for review of the review decisions (described as the ‘final decision’) were made out. If the criticisms of any final decision were justified the appropriate course would be to set aside that decision and order reconsideration. However as Wilcox J stated at 299 – 300:

    the final decision is not attended by legal error; any earlier defect will have been “cured” by the Department’s internal review process.  There would be no justification in going behind the review decision.  In the words of Lord Wilberforce [in Calvin v Carr (1980) AC 574 at 594], the review applicant will have had the “fair deal” he or she was entitled to expect. 

12. Reliance was also placed on Zubair v Minister for Immigration & Multicultural & Indigenous Affairs in which the Full Court of the Federal Court held that the Migration Review Tribunal had power to review a cancellation decision of a delegate which was affected by jurisdictional error and invalid because the delegate had not followed mandatory notice requirements of the Migration Act 1958.  No jurisdictional error was established in the Tribunal decision.  Their Honours stated at [32]:  “The Tribunal was, in consequence, able to ‘cure’ the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.” 

13. The respondent contends that similarly even if the delegate’s decision was affected by jurisdictional error the Tribunal’s valid decision ‘cured’ any such defect and that there would be no justification in going behind the Tribunal decision. 

14. Their Honours observed in Zubair (at [32]) that because the Tribunal could cure any defect in the delegate’s decision it was unnecessary to enter upon the question of whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings “in disregard of the procedure for Tribunal review”.  In this instance the applicant has not sought judicial review of the delegate’s decision in disregard of the procedure for Tribunal review or where Tribunal review was not available (cf Miah).  Rather the applicant sought and obtained a full merits review by the Tribunal which in judicial review proceedings has been found to be a valid decision.  That decision affirmed the decision not to grant the applicant a protection visa.  Yet she now seeks review of the delegate’s decision.  It is contended that she must fail because any defect in the delegate’s decision has been cured. 

15. In Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed the Full Court of the Federal Court held that the Migration Review Tribunal was correct to proceed to deal with a review on its merits in circumstances where the primary decision was invalid because the delegate had failed to comply with procedural steps under s.119 of the Migration Act 1958 in a manner constituting jurisdictional error.  However their Honours found jurisdictional error in the decision of the Tribunal.  The applicant had not sought direct relief in relation to the delegate’s decision.  The Court ordered that the matter be remitted to the Tribunal to be dealt with according to law.  Consistent with these authorities, in Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 in circumstances where a delegate of the respondent had wrongly cancelled a visa and on review the Migration Review Tribunal had fallen into jurisdictional error, the Full Court of the Federal Court made a declaration of invalidity of the Tribunal’s decision. The applicant had initially sought review of the decisions of both the delegate and the Tribunal. The Full Court also made a declaration of invalidity of the delegate’s decision to ensure that it was clear that the respondent’s visa was not and never had been cancelled. (See Allsop J at [36]). Because the Tribunal’s decision was also invalid it was not necessary for the Court in Alam to address the question of whether a valid Tribunal decision would cure a defect in a delegate’s decision.  In contrast in this instance no invalidating jurisdictional error has been found in the Tribunal’s decision. 

16. Counsel for the respondent conceded, consistent with Wu, that there may be errors of a kind that are incapable of being ‘cured’.  However, this is not such a case.  The review by the Tribunal was a de novo merits review.  The grounds in the application and the contentions in the applicant’s written submissions do not raise any error of a nature that could not be cured. 

17. The first ground in the application for judicial review is that the delegate did not have the power to give the decision.  It is not entirely clear what is meant by this ground, but see Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 in which it was held that a right of review existed whether or not a primary decision was legally effective. This reasoning was applied by Gyles J, with whom Spender J agreed, in Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495. It would also apply in this case. There is no suggestion that the visa application was not a valid application (see Yilmaz). 

18. The second ground in the application is that the delegate’s decision was invalid and not made within the meaning of the Migration Act 1958 and Regulations.  This seems to assert an error of law which clearly could be cured if the Tribunal made a lawful decision.

19. The third ground is failure to provide a lawful decision record.  The applicant contends that the decision of the delegate was invalid, apparently on the ground that she claims that the delegate did not notify her of the decision in accordance with the requirements of the Migration Act 1958 (C’th) (although this did not stop the applicant seeking review by the Tribunal within the applicable time limits).  However s.66(4) of the Act provides that failure to give notification of a decision does not affect the validity of a decision (and cf the very different circumstances considered in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292). In any event, any failure to notify of the sort contended is not such that it could not be ‘cured’ by a de novo merits review giving any necessary notification.  If there had been such a denial of procedural fairness it could be cured consistent with the approach in Twist and Wu. 

20. Ground four is an assertion that the Court has jurisdiction.  This is not disputed, although the cases referred to in the application (SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2004] FMCA 211 and NAMG v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2003] FMCA 541) considered situations where there had been no merits review by the Tribunal before judicial review of a delegate’s decision was sought. Ground five is an explanation for lateness. Further, insofar as the applicant’s written submissions raise a claim that the Tribunal failed properly to consider the applicant’s case and hence that there was a denial of natural justice, again such a defect is one that could readily be cured on review.

21. Counsel for the respondent also drew the Court’s attention to the decision of Raphael FM in NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783. In very similar circumstances to those now before the Court, his Honour found that an application for review of a delegate’s decision brought after an application for review of the Tribunal’s decision had been dismissed by the Federal Court did not disclose a reasonable course of action and should be summarily dismissed pursuant to Rule 13.10(a). His Honour referred to s.66(4) of the Act in relation to the applicant’s claims that the delegate did not notify him in accordance with the Act. He stated that the proper place to complain about the delegate’s decision was the Tribunal (or otherwise to bring proceedings under the Administrative Decisions (Judicial Review) Act 1997) and found (at [4]) that the applicant’s failure to do these things or to raise these matters in the prior proceedings seeking judicial review of the Tribunal’s decision “would seem to invoke the principle of Anshun estoppel.”

22. The same reasoning would apply in this case.  The applicant failed to challenge the delegate’s decision in the prior proceedings seeking judicial review of the Tribunal’s decision.  I consider that I should adopt the reasoning of Federal Magistrate Raphael unless satisfied it is clearly wrong.  (Also see to the same effect SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1065). As counsel for the respondent contended, while the notion of a delegate’s decision being ‘cured’ is not entirely clear, at the very least it means that the Court will not give relief in respect of a delegate’s decision in circumstances (such as those before the Court) when a person affected by a decision has had the opportunity to seek a de novo merits review, has taken that opportunity and where the decision on review has been found not to be flawed by error subject to correction in judicial review proceedings. 

1. Further it would seem that the applicant is estopped by Anshun estoppel principles from attacking the decision of the delegate in the present proceedings (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242). Were the matter to proceed to a final hearing her application should fail on principles of Anshun estoppel.  Anshun estoppel applies as the subject matter relied on in these proceedings was so relevant to the subject matter of the prior proceedings that it was unreasonable for the applicant not to rely on it.  (See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602 per Gibbs CJ, Mason and Aickin JJ). In issue in essence is the fate of the applicant’s application for a protection visa. If the delegate’s decision about such visa was capable of being attacked this should have occurred when the Tribunal’s decision was being challenged. The applicant failed to do this or to raise such matters in the prior proceedings before the Federal and High Courts. It is notable in this regard that the Tribunal decision was made on 12 May 2003 (after the decision of the High Court in Plaintiff S157 v Commonwealth (2003) 211 CLR 476). There was no doubt at that time that a delegate’s decision was capable of being included in an application for review of a Tribunal decision. The applicant should have brought forward her whole case in relation to her protection visa application in the prior proceedings against the respondent. This is not a case in which any special circumstances have been established which would justify the exercise of discretion not to apply the principles of Anshun estoppel.  The applicant has not raised any argument suggesting any reasonable basis for her failure to raise the present arguments (against the same respondent) in the earlier litigation. 

2. Even if, technically, Anshun estoppel did not apply, for example, because these proceedings relate to a different decision, in all the circumstances it cannot be said that the applicant’s claim has any chance of success because of the principles in Wu and Twist. It is bound to fail. In these circumstances, however expressed, the applicant’s claim seeking review of the delegate’s decision is so obviously untenable it cannot possibly succeed. I am satisfied that, while great care should be exercised in the exercise of the power of summary dismissal, it has been established that no reasonable cause of action is disclosed and that the application should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

3. However, if I am wrong (and I note that, albeit in a somewhat different context, where no issue of prior proceedings was involved, it has been suggested that if an application “asserted a formulated ground which, in terms, amounted to a recognised head of jurisdictional error” that ‘may’ be sufficient to avoid the operation of rules providing for summary dismissal on the basis that no reasonable cause of action is disclosed: see Allsop J in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [60]) I am satisfied in the alternative that in all the circumstances of the case the proceedings are an abuse of process and should be dismissed under Rule 13.10(c). As Allsop J pointed out at [61] in NBGZ if “the assertion of a recognised head of jurisdictional error is plainly untenable and unarguably doomed to fail, the written statement of a ground of jurisdictional error will not prevent summary disposal” (as an abuse of process or as a frivolous or vexatious proceeding).  

4. As discussed, at a final hearing these proceedings would be met by a defence of Anshun estoppel.  In any event their continuance would be an abuse of process in all the circumstances including the failure to challenge the delegate’s decision in the prior review proceedings and the absence of any reasonable basis for such failure or of special circumstances as well as the unexplained delay in instituting proceedings in relation to the delegate’s decision.  In Walton v Gardiner (1992-1993) 177 CLR 378 at 392 – 393 Mason CJ, Deane and Dawson JJ referred to the continuance of proceedings being an abuse of process notwithstanding that the circumstances did not give rise to an estoppel if “their continuance would be unjustifiably vexatious and oppressive for the reason it is sought to litigate anew a case which has already been disposed of by earlier proceedings”.  While this was addressing re-litigation of precisely the same case, I consider that such principles are equally applicable in these circumstances.  The applicant’s ‘case’ (as it were) has been disposed of by the decisions of the Federal Court and High Court to the effect that the Tribunal decision was valid.  Hence the right of the applicant to a protection visa was determined (adversely) by that decision.  It is consistent with what Lord Diplock stated in Hunter v Chief Constable of the West Midlands Police (Birmingham Six Case) [1982] AC 529 that the Court should exercise its inherent power to prevent misuse of its procedure “in a way which, although not inconsistent with the literal application of its procedural rules, … would … bring the administration of justice into disrepute among right-thinking people”. 

5. It may be that the applicant’s proceedings might also be described as frivolous or vexatious in that, given the effect of a valid Tribunal decision on defects in the delegate’s decision, the asserted grounds of review are plainly “untenable” (see NBGZ at [61]). However such ground was not relied upon in the notice of motion.

6. In all the circumstances I am satisfied that the notice of motion should be upheld and the application for judicial review of the delegate’s decision should be dismissed summarily on the alternative bases raised in the notice of motion.  I am also satisfied that it is appropriate to make the order sought that no further application to review either the decision of the delegate or the Tribunal be accepted for filing except with the leave of the Court.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 September 2005