SZGLG v Minister for Immigration
[2005] FMCA 1188
•11 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLG v MINISTER FOR IMMIGRATION | [2005] FMCA 1188 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – whether res judicata, Anshun estoppel or abuse of process. |
| Migration Act 1958 Federal Magistrates Court Rules 2001 |
| NAFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 192 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Somanader v Minister for Immigration & Multicultural Affairs (2001) 78 ALR 677 Applicant A321/2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 BC v Minister for Immigration & Multicultural Affairs [2001] FCA 393 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Walton v Gardiner (1993) 177 CLR 378 NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366 Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 |
| Applicant: | SZGLG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1409 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application for judicial review filed on 31 May 2005, be dismissed on the grounds that:
(a)the doctrine of res judicata applies and is a complete bar to the application;
(b)the applicant is estopped from bringing the proceedings; and
(c)the proceedings amount to an abuse of the court's process and should be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
That the applicant pay the respondent's costs fixed in the sum of $5,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1409 of 2005
| SZGLG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of notice of objection to competency filed by the respondent on 14 June 2005 and a notice of motion filed on 17 June 2005 seeking that the applicant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) filed on 31 May 2005 be dismissed on grounds of res judicata, issue estoppel, Anshun estoppel or as an abuse of process.
There is a lengthy background to these proceedings. The applicant arrived in Australia in March 1992 and on 13 July 1992 he applied for an entry permit in the nature of what is now a protection visa. Ultimately a Tribunal decision affirming the decision not to grant the applicant a protection visa was handed down on 14 March 2002.
The applicant, a Pakistani citizen, claimed that he feared harm from the Pakistan Muslim League because of his membership of the Pakistani People's Party (the PPP). The Tribunal rejected the applicant's claims to have a well founded fear of persecution finding that he had an unremarkable profile with successive governments and regions in Pakistan and that given the number of times he had returned to and from Pakistan he had no genuine well-founded fear of persecution. It also found that he lacked credibility and did not face a real chance of harm as a mere supporter of the PPP.
On 15 April 2002 the applicant filed an application for judicial review of the Tribunal decision in the Federal Court. The proceedings were transferred to the Federal Magistrates Court on 4 July 2002. On
1 August 2002 the applicant filed an amended and particularised application alleging that the Tribunal misconstrued the legal test for well founded fear of persecution for a Convention reason and that it wholly ignored relevant material and in so doing made an erroneous finding and/or reached a mistaken conclusion in circumstances amounting to jurisdictional error.
On 30 August 2002, Federal Magistrate Raphael dismissed the application. It is apparent from his Honour’s reasons for judgment (reported as NAFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 192) that the applicant had the assistance of counsel in the proceedings before the Federal Magistrates Court. There is nothing to suggest that there was any appeal from this decision.
Subsequently, on 31 May 2005, the applicant filed a fresh application for judicial review in this court. That application contends generally and without particulars that the Tribunal made a jurisdictional error when it ignored and overlooked relevant and relied on irrelevant material. It is also claimed that the Tribunal decision involved an error of law being an incorrect application of the law to the facts and that the applicant was denied procedural fairness. It is this application which the respondent now asks the court to dismiss on a summary basis.
The respondent seeks dismissal of these proceedings on two bases. In the absence of clear authority being cited to me about to the arguments put in relation to the notice of objection to competency, I consider it preferable to consider first the grounds raised in the notice of motion. The argument for summary dismissal is put on a number of alternative bases in the notice of motion. It is contended first that the doctrine of res judicata applies, in light of the prior proceedings by the applicant challenging the same Tribunal decision.
The principles of res judicata apply 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, see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242.
As Merkel J stated in Somanader v Minister 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.
In Applicant A321/2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Wilcox J suggested at [18] that the central question was whether the second application sought to re-litigate the same claim for relief as the earlier proceeding. His Honour stated:
It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced.
In this instance, the application seeks review of the same Tribunal decision. The substratum of facts giving rise to the rights to review is the same in each instance. The substance of the proceedings is the same.
On the broad view of the scope of res judicata taken in Somanader and Applicant 321/2002, the grounds that are raised in the application filed on 31 May 2005 can be seen as an attempt to re-litigate the same claim for relief raised by the applicant in the amended application filed in this Court on 1 August 2002. That is certainly so in relation to the first two grounds raised in the application of 31 May 2005. It is not necessary for me to consider further the precise scope of each of the grounds raised in the past and the present application. Even if I am wrong in taking the view that in each case the applicant seeks review on grounds that have the necessary commonality for the principles of res judicata to apply (consistent with what was said in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [19] – [23]), I am satisfied that the doctrine of Anshun estoppel applies and should be applied to preclude the applicant from raising any of the grounds pleaded in his present application. The doctrine of 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 such matters in the earlier litigation. See Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602, Wong at [49] and Daniel at [25].
In this instance, the issues that the applicant raises relate to the Tribunal decision and conduct of the review. They were clearly relevant to the subject matter of the earlier action. It was open to the applicant, to the extent that he did not do so, to have raised in the prior proceedings against the respondent any or all of the generally expressed grounds that he now raises in his application for review of the Tribunal decision. In the circumstances of this case the principles of Anshun estoppel preclude the applicant from raising any of these grounds. 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 the discretion to refrain from the application of the Anshun estoppel doctrine. The material filed by the applicant in response to the notice of motion does not raise circumstances which would warrant the exercise of the discretion. The document the applicant filed on 22 July 2005, states that the matter was decided in his absence, and refers to there being more than one relevant decision. It contends that special circumstances apply ‘in the light of the RRT new decision’. However when I asked the applicant what decision this claim referred to he was unable to explain, other than to confirm that there was only the one Refugee Review Tribunal decision. In such circumstances the contentions in the document do not constitute special circumstances as they appear to be unrelated to the applicant’s actual situation. He told the Court that someone had assisted him with the preparation of the document. Neither that fact nor the fact that he now complains of the absence of legal representation, constitutes special circumstances.
I am mindful of what was said by the Full Court of the Federal Court in BC v Minister for Immigration & Multicultural Affairs [2001] FCA 393, but do not consider that special circumstances have been established. In particular, procedural fairness, as well as the other bases on which it is now contended that the Tribunal fell into jurisdictional error, could have been raised as a ground for review at the time of the prior proceedings.
While the applicant commenced those proceedings before the decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, I do not consider that this constitutes special circumstances. The applicant had the assistance of legal representation in his prior proceedings and it has not been established that there was any reason why any issues which the applicant now seeks to raise were not canvassed in the earlier proceedings. The applicant is estopped from pleading the grounds which he now seeks to raise.
In the alternative, if I am wrong in what I have said in relation to res judicata or Anshun estoppel, I am satisfied 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 392-3. (Also see Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [19]).
The applicant is seeking to re-litigate the same Tribunal decision that was dealt with by the Federal Magistrates Court. He had the assistance of legal representation in the prior proceedings. If he took issue with the decision of Federal Magistrate Raphael it was open to him to lodge an appeal to the Federal Court. He did not do so despite having had ample opportunity to put forward any legitimate and bona fide claim. Rather he now, after some considerable time, seeks to re-litigate the matter. The delay has not been explained. The claim for relief he seeks is essentially the same. He seeks to evoke the same jurisdiction. The substance of the claims that he now makes has been dealt with by the prior proceedings.
Moreover, on the material before me, the grounds as expressed in the application and, indeed, in the documents filed in response to the notice of objection to competency and notice of motion, do not establish any arguable basis for relief.
The applicant has not attempted to point to any error by the Court in the previous proceedings. Indeed no challenge is made, nor is it apparent that any challenge could be made, to the Tribunal's finding (which was considered by Federal Magistrate Raphael) about the applicant's lack of a well founded fear of a persecution based on his comings and goings to the country from which the alleged fear emanated. The history of the applicant's application and proceedings in Australia are part of the circumstances I take into account in exercising the discretion I have to dismiss the proceedings as an abuse of process. Having regard to the unexplained delay in bringing the current proceedings, an inference can be drawn that the applicant filed the present application for the collateral purpose of extending the period of his stay in Australia: NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366 at [12]. In any event the delay is part of the circumstances in which I am satisfied that the present attempt to re-litigate the matter constitutes an abuse of process consistent with the well established principles discussed in Walton v Gardiner.
As I am satisfied that the respondent should succeed in the notice of motion, it is not necessary for me to determine the notice of objection to competency. I consider the appropriate basis for dismissal of these proceedings is on the basis of res judicata or Anshun estoppel, or as an abuse of process. Before making those orders I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The respondent has succeeded in the notice of motion, which means that ultimately the applicant has been unsuccessful. The respondent seeks costs on an indemnity basis in the sum of $5,600. The applicant responds that he cannot afford such costs as he has no money. In the particular circumstances of this case set out above, where proceedings which raise no arguable basis for relief were instituted after a long, unexplained delay seeking to relitigate matters determined finally by the Court and have been dismissed as an abuse of process, I consider that costs on the basis sought by the respondent sought should be ordered. (See Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727). The applicant's impecuniosity is not a reason for not awarding costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 August 2005.
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