SZGMQ v Minister for Immigration
[2005] FMCA 1046
•26 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMQ v MINISTER FOR IMMIGRATION | [2005] FMCA 1046 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – prior proceedings discontinued by consent – whether res judicata, Anshun estoppel or abuse of process. |
| Migration Act 1958, ss.36(2), 65(1), 476 & 483A Judiciary Act 1903, s.39B Commonwealth of Australia Constitution Act 1901, s.75(5) |
| Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Somander v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 BC v Minister for Immigration and Multicultural Affairs [2001] FCA 393 SZBJM v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 Walton v Gardiner (1993) 177 CLR 378 SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255 SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207 |
| Applicant: | SZGMQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1503 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 9 June 2005 be dismissed as an abuse of process pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.
The applicant pay the respondent's costs fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1503 of 2005
| SZGMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of a notice of motion filed on 28 June 2005 by the respondent seeking that the applicant's application for judicial review filed on 9 June 2005 be dismissed as an abuse of process pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.
There is a lengthy background to these proceedings. The applicant, who is a citizen of Lebanon, came to Australia in 1987. He applied for the predecessor to a protection visa on 28 November 1991. His application was refused on 9 June 1994. He sought review by the Refugee Review Tribunal (the Tribunal) in July 1994. Consistent with 1994 amendments to the Migration Act 1958 the Tribunal treated the application as an application for review of the refusal of a protection visa. On 10 September 1996, the Tribunal affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa.
The applicant sought review of that decision by proceedings commenced in the Federal Court of Australia on 8 October 1996.
He was legally represented and sought review of both the decision of the delegate and of the Tribunal raising a number of particularised grounds under section 476 of the Migration Act 1958, as it then stood.
However that application was dismissed by consent on 29 May 1997. Before the Court is a Minute from the Litigation Branch of the Department of Immigration to the Tribunal stating that the applicant had withdrawn his Federal Court application and setting out the orders made by the Federal Court. The applicant does not dispute that on
29 May 1997 Goldberg J ordered that the matter be dismissed by the consent of the parties and that the applicant was to pay the respondent's costs.
Thereafter, the applicant lodged an application for a Subclass 851 (Resolution of Status) visa on 31 March 1998. That application was refused on 5 October 1999. There is no record of any immediate application for review on the material before me. The applicant's bridging visa, based on that application, ceased on 9 November 1999. An affidavit sworn by the solicitor with carriage of the matter for the respondent’s solicitors on 28 June 2005, indicates that on 27 September 2004 the applicant was located by departmental officers and detained. He then attempted to lodge an application for review of the decision in relation to the Subclass 851 visa with the Migration Review Tribunal on 6 October 2004. That application was rejected as being out of time. He sought a bridging visa which was refused. That refusal was also affirmed by the Migration Review Tribunal.
On 29 November 2004 the applicant made a request to the Minister to exercise her powers under section 417 of the Migration Act 1958 to substitute a more favourable decision for the decision to refuse the applicant's application for a protection visa. The applicant was granted bridging visas on 24 December 2004 and on 24 March 2005.
By letter dated 20 April 2005 the applicant was advised that the Minister had decided not to consider exercising the powers under section 417 of the Act. A further bridging visa was granted on 26 May 2005, on the basis that the applicant was making departure arrangements to depart Australia. However on 9 June 2005 the applicant filed an application in this Court for review of the decision of the Refugee Review Tribunal of 10 September 1996.
In the 9 June 2005 application for review, the applicant relies on three very generally expressed and unparticularised grounds of review, which are, in essence, that the Tribunal made a jurisdictional error by failing to apply the Refugees Convention as amended by the Refugees Protocol to the application in question; by misdirecting itself as to the nature of persecution under the Convention, or by making an error of law in its construction of Australia's protection obligations under the Convention and sections 36(2) and 65(1) of the Migration Act 1958.
As I have indicated, by notice of motion filed on 28 June 2005, the respondent seeks that the proceedings be dismissed as an abuse of process. The argument for summary dismissal is put by the respondent on a number of bases. In particular, it is contended that the proceedings are an abuse of process in that the principles of res judicata or Anshun estoppel are applicable 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. In this instance the prior proceedings were dismissed by consent. However in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21, Goldberg J took the view (with which I agree) that the fact that an application for review was dismissed by consent was not a bar to the Minister being able to raise a claim of res judicata. The only difficulty, as his Honour pointed out (at [18]) that could arise in determining whether a consent order raised an issue of res judicata was in specifying the matter, or cause of action, which had already been determined by the court.
In Daniel there had been a consent dismissal of proceedings brought under the old Part 8 of the Act alleging errors of law within s.476 of the Act. However the cause of action in the matter before the Court arose not under the old Part 8 of the Migration Act but rather under s.75(v) of the Constitution of the Commonwealth of Australia 1901. The same may be said about the present case. The prior proceedings were in the Federal Court and relied on Part 8 and the law in section 476 as it then stood. The present proceedings rely on the broader grounds of jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24) and the jurisdiction of this Court under s.483A of the Migration Act 1958 (which is the same as the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903). This does not prevent the application of the principles of res judicata (Daniel at [9] – [20]).
As Merkel J stated in Somander v Minister for Immigration & Multicultural & Indigenous Affairs at 53:
The identity of the claims for relief or cause 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 Somander, Daniel and in each of the proceedings for judicial review in this case, the substratum of facts giving rise to the right to review are the same. The factual circumstances relied upon to establish the right to relief are the same. While the present proceedings are not brought under the old Part 8 of the Act, as in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs in each case the application seeks review on the grounds that have the necessary commonality for principles of res judicata to apply. (See Somander at [65] and Daniel at [19] – [23]).
The initial judicial review application related both to the decision of the delegate of the respondent and that of the Tribunal. However, when one looks at the grounds for review relating to the decision of the Tribunal, relevantly there is a claim that procedures required by the Migration Act 1958 to be observed were not observed (that the Tribunal failed to act according to substantial justice and the merits of the applicant's case, that it failed to consider particular aspects of the applicant's claims which are detailed, and that it failed to consider the applicant's circumstances cumulatively). It was also claimed that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. There are particulars of these grounds. It was claimed that the decision of the Tribunal contravened the common law duties of the Tribunal in exercising its powers in considering whether it was satisfied that the applicant was a person to whom Australia had protection visa obligations, that it took into account extraneous factors and excluded from consideration factors it ought to have taken into account, and that the finding that the applicant did not have a well-founded fear of persecution for a Convention reason involved a failure by the Tribunal to discharge its functions according to its duties. It was also claimed that the decision involved an error of law being an incorrect application of the law to the facts as found, being a failure by the Tribunal to proceed on the basis that the applicant had a well-founded fear of persecution at the particular time, and an error in finding that there had been a material change in circumstances without considering certain other elements.
In considering the present application I have had regard to Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [18] in which Wilcox J suggested that the central question, when looking at res judicata, was whether the second application sought to re-litigate the same claim for relief in the earlier proceeding. Indeed he stated that:
“It matters not that the re-litigation was intended to be based upon an argument that was not previously advanced.”
In this instance, as indicated, three very general and unparticularised grounds are now raised. However, it is clear from considering those grounds (a failure to apply the applicable law, a misdirection as to the nature of persecution, and an error of law) that in substance the applicant raises, albeit in more general and unparticularised form, matters that were raised in the prior proceedings. Despite the fact that the present application is not expressed in precisely the same words, both rely, in effect, on a cause of action based upon an error of law, and as in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs, I am satisfied that there is the requisite commonality between the two causes of action. The applicant now seeks to re-litigate the same claim for relief. Res judicata applies to the grounds raised in the application filed on 9 June 2005. As discussed below the applicant’s attempt to re-litigate the same claims amounts to an abuse of process.
Even if that is not the case and the doctrine of res judicata does not apply, I am satisfied that the applicant should be estopped from bringing the present proceedings on the basis of the principles of Anshun estoppel, as explained in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589.
Anshun estoppel prevents a party from raising in subsequent litigation issues which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to have relied on them. It remains open to the Court to allow the later proceedings to continue if special circumstances exist which warrant a departure from the prima facie operation of estoppel. See Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242.
In this instance I am satisfied that the doctrine of Anshun estoppel precludes the applicant from raising any of the grounds pleaded in the application. The grounds raised in the application of 9 June 2005 could have been raised in the earlier application. It was unreasonable for the applicant not to have done so (insofar as aspects of such claims are not in any event barred by res judicata). I have considered whether special circumstances are present which would enliven the discretion to refrain from the application of the Anshun estoppel doctrine. While the earlier proceedings were dismissed by consent, I do not consider that this is a circumstance that either prevents the application of the doctrine of Anshun estoppel (consistent with the approach taken in relation to res judicata and issue estoppel in Daniel and Somander) or constitutes special circumstances.
The applicant raised a number of humanitarian concerns. He claimed that he had, in fact, sought consistently to pursue his rights legally and understood that he had done so successfully from the time he arrived in Australia in 1987 and also that he now had a wife who was pregnant and expecting his child. However, while such matters may raise humanitarian concerns, they are not matters which constitute special circumstances which warrant a departure from the prima facie operation of the principles of Anshun estoppel, where the applicant seeks to raise issues which properly belong to the subject of earlier litigation. Such humanitarian concerns are not a basis on which it is appropriate for the Court to exercise the discretion which, in this case, is a discretion which is being exercised to determine whether or not the matter should be summarily dismissed or there should be a final hearing.
I accept that the outcome of this application will have serious consequences for the applicant if it is determined against him. However, as in Danielv Minister for Immigration & Multicultural & Indigenous Affairs at [28] to [29], I do not consider that these consequences or, indeed, the background of the applicant in Australia and his concerns about his family situation warrant not applying the Anshun principle.
I note also that in issue is an application for review of a refugee matter, which involves a complex procedure but, indeed, such circumstances apply in one form or another (as Goldberg J recognised in Daniel) in many cases which come before the Court. In many circumstances, applicants raise humanitarian issues but they do not go to the question of whether or not the principles of Anshun estoppel should apply.
I also note that there is nothing in the grounds as generally expressed which raises claims which might not have been litigated at the time of the prior proceedings albeit not raised as a claim of jurisdictional error.
While mindful of what was said by the Full Court of the Federal Court in BC v Minister for Immigration and Multicultural Affairs [2001] FCA 393, I do not consider that special circumstances have been established. See also Applicant A210/2202 v Minister for Immigration & Multicultural & Indigenous Affairs, and also Applicant A321/2002, and SZBJM v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 404.
I am satisfied that Anshun estoppel operates to bar these proceedings as an abuse of process insofar as any claims are not, in any event, barred by res judicata.
Finally, I am satisfied that the applicant's attempt to re-litigate what is in essence the same claim for relief on the basis of jurisdictional error by the Tribunal is an abuse of process within the meaning of that term as discussed in Walton v Gardiner (1993) 177 CLR 378 at 393 Mason CJ and Deane and Dawson JJ (and also see Wilcox J in Applicant A321/2002 at [19]). The applicant is attempting to re-litigate the same Tribunal decision. He had the assistance of legal representation in the prior proceedings. He chose, albeit that he may have thought that that was the preferable approach, to withdraw from and discontinue those proceedings by consent. The matter was finally determined by that consent discontinuance and, thereafter, the applicant proceeded in a manner which did not take issue with the Tribunal decision. Rather he sought to re-litigate these matters only after he was located and detained by the Department and had unsuccessfully pursued alternative avenues.
The case is not on all fours with the decision of Moore J in SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255, where his Honour held:
That it was open to dismiss a proceeding as an abuse of process where there had been two applications and each suffered from the same lack of particularity.
Rather in this instance, the first application, contained full particulars of the grounds relied upon. The second application does not pursue the approach of a fully particularised application. Rather the applicant abandoned that approach by consenting to the dismissal of the prior proceeding. He now brings a proceeding which is completely lacking in particulars. Whether or not that, in itself, is a basis for dismissal as an abuse of process as contended for the respondent is not necessary for me to determine. I take it into account as part of all of the circumstances in my conclusion that the proceedings should be dismissed as an abuse of process within the meaning of that term as discussed in Walton v Gardiner.
I have also taken into account the Tribunal decision and whether any arguable basis for the grounds of review has been established. In essence, the Tribunal accepted the claims made by the applicant about activities he had engaged in the past, but, on the basis of extensive country information to which it referred, considered, particularly in light of changes in the circumstances in the applicant's country of origin (Lebanon), that the applicant did not have a well-founded fear of persecution for a Convention reason.
The Tribunal detailed aspects of the applicant's claims as to what had occurred in the past, then referred to particular relevant aspects of country information which it related to those particular claims.
In particular it had regard to improvements in the circumstances in Lebanon. While acknowledging that circumstances were far from ideal on the basis of that information it reached a number of conclusions.
It drew an inference from the information before it that those involved with the militia, including Lebanese forces prior to the end of the earlier war, were no longer detained and mistreated unless they remained loyal to a particular detained former Christian warlord, Samea Geagea, who had been clearly targeted for punishment by the government. It found that it was members of his organisation that had been detained since 1994, but that there was an absence of report that members of other militia grounds had been subject to mistreatment.
The applicant's claims did not extend to an involvement with or loyalty to Mr Geagea, and indeed, he had stated that he opposed such forces. On that basis the Tribunal found that he did not have a well founded fear of persecution. It also rejected some of his claims about a continued fear that the militia had continued to inflict violence on their various enemies based on the independent country information.
The Tribunal concluded for reasons it gave that there was only a far-fetched likelihood that the applicant's former association with the Phalange Party and the militia, would result in persecution. It also had regard to the applicant’s claims that he would fight the Syrians or hide if he returned to Lebanon, but noted that he quit the Lebanese forces in 1986, that he left in fear of being attacked by the Geagea militia, and that the forces to which he was formerly loyal were at the time of the Tribunal decision engaged in the mainstream political process and attempting to negotiate an accommodation with Syria with the long term aim of Syrian departure.
The Tribunal was of the view that if the applicant so desired, he could be critical of the Syrian occupation, and that if he intended to resort to violence to achieve his political aims, while he might be confronted by the criminal consequences of his acts, that would not, in the Tribunal's determination, result in him being a refugee.
The Tribunal also addressed claims that he made about fears of the PLO, but found, consistent with independent country information, none of the reports before it suggested that the PLO had the will or capacity to attack Lebanese citizens in Beirut because they were opposed to their religion or involved in a militia that fought the PLO. It found the applicant's fears of the PLO to be groundless.
It also considered the applicant's claims based on his religion as a Maronite, and his former association with the Phalangists and the Lebanese forces. His own evidence and the information before it was such as to establish that his fears of the Lebanese and Syrian authorities, the PLO and various militia groups or their former members, was ill founded, as he did not face a real chance of persecution should he return to Lebanon.
Finally, the Tribunal considered the applicant’s fear that he may be killed in a revenge murder. It found the likelihood of this to be far fetched on the basis of country information, but that if this were not the case, the infliction of harm on the applicant because he had harmed another person, would not, of itself, bring him within the definition of refugee.
I have spent some time detailing the Tribunal reasons for decision. The Tribunal findings were open to it for the reasons it gave on the material before it. It addressed the applicant’s claims and there is nothing to suggest that it misapplied or misunderstood the applicable law. There is nothing to support a claim that there is any arguable basis on which any of the grounds of review in the applicant's application of 9 June 2005 could succeed.
I have taken all of the circumstances into account, including those factors raised in the respondent's submissions in relation to the purpose of the application, the applicant's intention to extend his stay in Australia, his history in not taking other proceedings to challenge the Tribunal decision after the dismissal by consent, and his choice after being located more recently to make a request under section 417 of the Act. I consider that the appropriate basis for dismissal of these proceedings is, as I have indicated, on the basis of res judicata or Anshun estoppel, or more generally, an abuse of process consistent with the well established principles discussed in Walton v Gardiner.
I consider that the history of the applicant's application and proceedings in Australia are part of all the circumstances that I should take into account in exercising the discretion I have to dismiss the proceedings as an abuse of process.
As I am satisfied that the proceedings are an abuse of process and that it is appropriate that the applicant's application for judicial review should be dismissed it is not necessary for me to determine the next basis on which it is contended that there is an abuse of process, that being that there is a collateral purpose or ulterior motive in the bringing of this application for judicial review, it being for the purpose of extending the period of the applicant's stay in Australia. See SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207.
I note that while the applicant, himself, has indicated clearly an intention to remain in Australia, he also indicated from the bar table consistent with what appears in his application to the Minister under section 417 of the Act, that his personal circumstances are the reason for such wish to remain in Australia. In light of my findings above I do not need to consider the extent to which an abuse of process is established in such circumstances. Nor is it necessary for me to determine the respondent’s other alternative ground, that the grounds as pleaded in the applicant's application for review disclose no reasonable cause of action.
The appropriate basis for dismissal of these proceedings is, as I have indicated, on the basis of res judicata or Anshun estoppel, or more generally, an abuse of process consistent with the well established principles discussed in Walton v Gardiner.
Accordingly, I propose to make the orders sought by the respondent. The respondent seeks that the applicant pay the costs of these proceedings. It is the usual practice of the Court to fix an amount of costs and I will hear submissions in relation to the amount of costs.
RECORDED : NOT TRANSCRIBED
The respondent has succeeded on the notice of motion, which means that the applicant has been unsuccessful in the application for judicial review. The applicant raises his circumstances, being that he is not working, his wife is not working, he has incurred considerable expenses and will have further expenses if he has to leave the country. Nonetheless, such circumstances are not such as to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
The respondent seeks costs in the sum of $3,400 indicating that the costs incurred were in the order of $4,200. Bearing in mind that the proceedings are to be dismissed summarily and that the expenses of briefing Counsel, a final hearing and preparation of a bundle of relevant documents have not been incurred (although it was necessary for written submissions and a number of annexures to be prepared and annexed to an affidavit of the solicitor for the respondent), I consider that an appropriate amount, bearing in mind the nature of this and other similar matters dealt with at this stage of the proceedings is the sum of $3,000.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 July 2005.
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