SZGUE v Minister for Immigration - [2006] FMCA 1346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1346

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal complied with s.424A(1) of the Migration Act 1958 (Cth) – whether litigation history an abuse of process of Court by Applicant – whether order that the Applicant not be allowed to file further proceedings without leave of the Court should be made.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3)(a); 424A(3)(b); 474; 476(1); 476(6)(a); 477A(1); pt.8 div.2

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 242
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Ling v Commonwealth of Australia (1996) 139 ALR 159
SZBXA v Minister for Immigration [2004] FMCA 96

Applicant:

SZGUE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1895 of 2005

Judgment of:

Emmett FM

Hearing date:

1 September 2006

Date of last submission:

1 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr H. Altan

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms H. Blackman, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1895 of 2005

SZGUE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 January 2003.
The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 19 April 2001. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 49 year old male who claims to be a citizen of Bangladesh and of Bangladesh ethnicity and Muslim faith (“the Applicant”).
The Applicant has a wife, son and daughter who remain in Bangladesh.
The Applicant arrived in Australia on 11 September 2000, having departed legally from Dhaka Airport on a passport issued in his own name and a visitor’s visa issued on 14 August 2000.
On 25 September 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 19 April 2001, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
In his protection visa application, the Applicant claimed that he feared persecution by Bangladesh police and law enforcement authorities due to his involvement with the Bangladesh Nationalist Party (“BNP”). He claimed that during a demonstration by the BNP against the Awami League Government, a pedestrian was killed. The Applicant claimed that a “false murder charge” was subsequently lodged against him in relation to the pedestrian’s death.
On 1 May 2001, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant also claimed that, in addition to a fear of persecution from members of the Awami League, he also feared persecution from enemies in the Jatiyo Party and in other factions of his own party, the BNP.
On 28 January 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 July 2005, the Applicant filed an application in this Court seeking judicial review of both the Tribunal’s decision and the Delegate’s decision.
On 2 August 2005, the First Respondent filed a notice of objection to competency.
In relation to the Delegate’s decision, pursuant to s.476(1) of the Act, this Court does not have jurisdiction in relation to the Delegate’s decision, that decision being a primary decision in terms of s.476(6)(a) of the Act.
In relation to the Tribunal decision, the notice of objection to competency stated that the Tribunal’s decision is a privative clause decision and that any application to this Court for review of that decision must be made within 28 days of the notification of the decision pursuant to s.477A(1) of the Act. The notice of objection to competency stated that the Applicant was notified of the Tribunal’s decision on 28 February 2003 and the application to this Court filed on 19 July 2005, clearly outside the statutory time period.
On 10 October 2005, the Applicant filed an amended application that sought judicial review of the Tribunal’s decision only. Accordingly, I assume that the Applicant’s application for judicial review of the Delegate’s decision is withdrawn.
On 27 October 2005, the First Respondent filed a notice of motion seeking that the Applicant’s application be dismissed because of the principles of res judicata or issue estoppel or Anshun estoppel and that the proceedings are an abuse of the Court’s process. In support of that motion the First Respondent relied on an affidavit of Sonia Sarah Harris affirmed 26 October 2005 annexing the litigation history of the Applicant in seeking judicial review of the Tribunal’s decision. That motion was withdrawn by the First Respondent on 29 May 2006.
The Applicant was represented before this Court by Mr Altan, of counsel. Leave was given to the Applicant at the hearing to rely on a further amended application in the following terms:
“1. The Decision involves a jurisdictional error and a breach of the rules of natural justice in that the Tribunal failed to comply with the requirements of s424A of the Migration Act 1958 (“the Act”).
PARTICULARS
(a) In reaching its decision, the Tribunal relied on the contents of the Applicant’s application for a protection visa to the Department of Immigration and Multicultural Affairs (“the Application”);
(b) No copy or particulars of the Application were provided to the Applicant by the Tribunal;
(c) The Tribunal failed to ensure that the Applicant understood why the particulars of the Application were relevant to the review being conducted by the Tribunal;
(d) The contents of the Application and the Applicant’s response to questions from the Tribunal in respect of the Application formed part of the reasons for the decision of the Tribunal to affirm the decision of the delegate of the Minister refusing to grant the Applicant a protection visa.
2. Such further or other grounds as may be notified.”

The Applicant’s application for relief

The hearing before this Court was conducted by each party’s counsel on the basis that the First Respondent was seeking an order that the Applicant not be able to file any further proceeding in respect of the Tribunal’s decision without leave of the Court because the Applicant had engaged in abuse of the Court’s process by the filing of his application in this Court on 19 July 2005.
In the circumstances, I shall deal first with the Applicant’s application for judicial review.
Counsel for the Applicant submitted that the Tribunal erred in failing to give to the Applicant information in his protection visa application that was used by the Tribunal as part of the reasons for affirming the decision under review. Counsel for the Applicant further submitted that no such argument had been raised in any earlier proceedings and that Anshun estoppel should not be used to defeat the Applicant’s claim for relief because of the special circumstances of the Applicant in that he was not represented in any of his prior proceedings.
Essentially, the Applicant in his original application claimed persecution from Awami League. Before the Tribunal he expanded those claims to include fear of persecution from the Jatiyo Party and members of his own party. The Tribunal made no adverse finding about the expansion by the Applicant of those claims and did not seek to suggest the subsequent claims were a recent invention or that there was any adverse conclusion that it drew because of those further claims.
The Tribunal assessed all of the Applicant’s claims and ultimately based its decision on independent country information before it in concluding that there was no real chance of persecution in the future of the Applicant for the reasons he had claimed.
It is clear from the structure of the Tribunal’s decision that the Tribunal notes the various claims and then goes on to say that “for the following reasons” the Applicant’s fear of persecution is not well founded. Those reasons proceed on an acceptance of the Applicant’s claims and a consideration of the independent information before the Tribunal that led to its finding that the Applicant’s fear of persecution for a Convention reason is not well founded.
The Tribunal is not obliged to give the independent information upon which it relied to the Applicant in writing for comment because such information is excluded pursuant to s.424A(3)(a) of the Act. Even though the Tribunal referred to information in the Applicant’s protection visa application and his statutory declaration lodged in support of his protection visa application the Tribunal drew no adverse finding in respect of the Applicant arising out of any inconsistency or omission in subsequent claims. The further claims made to the Tribunal by the Applicant were information given to the Applicant for the purpose of its review and were therefore excluded from the obligations of s.424A(1) by s.424A(3)(b).
There is no breach by the Tribunal of the requirements of s.424A(1) in the manner in which it dealt with information before it

First Respondent’s application for an order that the Applicant not be allowed to file any further proceeding without leave of the Court

I shall now deal with the First Respondent’s contention that, by filing an application in this Court for judicial review of the Tribunal’s decision, it is, in the circumstances, an abuse of the Court’s process and the Applicant should therefore not be allowed to file any further proceeding in relation to the Tribunal’s decision, without leave of the Court. Essentially, the First Respondent contended that the history of the Applicant’s litigation with respect to the Tribunal decision, dated

19 July 2005, amounts to a res judicata between the parties or that there is an issue estoppel. The First Respondent submitted that, if those contentions are made out, then there is a clear abuse by the Applicant of the Court’s process.
First, it is relevant to set out the litigation history of the Applicant’s proceedings.
Following notification to the Applicant of the Tribunal’s decision, the Applicant sought judicial review of the Tribunal’s decision pursuant to an application filed in the Federal Court on 14 March 2003. On 26 May 2003, Madgwick J dismissed the Applicant’s application following a hearing before him at which the Applicant made submissions. Inter alia, the grounds before Madgwick J included the following;
“3. I was deprived to fully present my case to the Tribunal.
4. The Tribunal failed to act according to substantial justice and the merits of the case were ignored by the Refugee Review Tribunal member.”
Those grounds were wholly unparticularised and are of such broad import as to encompass a reference to most grounds.
Madgwick J considered the decision of the Tribunal and noted that the Tribunal’s conclusion that the Applicant did not have a well founded fear of persecution for a Convention related reason was based on country information before the Tribunal. Madgwick J concluded the following:
“The only matters of substance, or potential legal substance that one might discern from the application and written submissions seem to me to be an alleged deprivation of the opportunity fully to present his case to the Tribunal and that the Tribunal failed to act according to the substantial justice and the merits of the case.”
No procedural unfairness is manifest from the material before me. If any error could be established on the part of the Tribunal Member it would not appear to be of such a kind that it would nullify the decision.”
Thereafter, on 12 June 2003, the Applicant filed a notice of appeal in the Federal Court of Australia on the basis that the decision of Madgwick J “failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act. 1903.”
The Full Court of the Federal Court concluded the following:
“There is nothing in the processes, reasoning or decision of the Tribunal that appears to involve any jurisdictional error. This is what the primary Judge found. We can find no appealable error in the reasoning of the primary Judge.”
The Full Court of the Federal Court dismissed the appeal.
Thereafter, on 22 December 2003, the Applicant filed an application for special leave to appeal to the High Court of Australia, claiming that, inter alia, the Full Federal Court erred in failing to find that, “Beside, the Refugee Review Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 28 January 2003 in deciding our protection visa review application. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.”
On 2 July 2004, a certificate of deemed abandonment was filed in the High Court of Australia.
On 16 July 2004, the Applicant filed a further application for special leave to appeal in the same terms as the first application for special leave to appeal.
On 27 April 2005, in refusing special leave to appeal, McHugh J stated that any appeal would have no prospect of success and accordingly leave was refused. McHugh J specifically had regard to the Applicant’s claim of a fear of false prosecution for murder and noted the Tribunal’s conclusion that the judicial system in Bangladesh is relevantly independent and that the alleged case against the Applicant would proceed on its merits. McHugh J found that that conclusion by the Tribunal was open to it and did not disclose any jurisdictional error reviewable by the Courts.
The First Respondent submitted that the cause of action between the parties is based on whether or not the Tribunal had jurisdiction to make the decision it made. That is, was the Tribunal’s decision affected by jurisdictional error and was therefore a privative clause decision. The First Respondent submitted that that issue was decided by Madgwick J and there is therefore a res judicata between the parties of that issue and it would be an abuse of process to allow the parties to litigate repeatedly matters that have been finally determined by the Court. (Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 242 at [36] (“Wong”)). The reasons for such a principle are enunciated by the Full Court of the Federal Court in Wong at [36] as follows:
“Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.”
The First Respondent conceded that there may be an argument, although not an argument with which the First Respondent would agree, that the sub-issues giving rise to the claim of jurisdictional error ought necessarily also to have been decided for there to be a

res judicata
.
However, even if that argument is correct, the First Respondent would submit that there is an issue estoppel that arises in respect of every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation. (Wong at [37]; Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 (“Anshun”)).
In Anshun the High Court of Australia, per Gibbs CJ stated at [17]:
“The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J. in Blair v Curran (1939) 62 CLR 464, at p 532 in these terms: “in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” (at p597)”
These principles were distilled by the Full Court of the Federal Court in Wong in the following terms:
“In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602”
In accordance with those principles, the First Respondent submitted that the breadth of the grounds relied upon by the Applicant, in his application before the Federal Court, were so broad as to include the issue now before the Court, being a breach of s.424A. The s.424A issue was included in the Applicant’s ground that the Tribunal failed to act according to substantial justice and that the merits of the case were ignored by the Tribunal. Substantial justice would include compliance with the statutory regime for the conduct of the review as well as its decision. Plainly compliance by the Tribunal with its obligation pursuant to s.424A of the Act is part of that statutory regime.
However, if that is not so, and the issue as to whether or not the Tribunal complied with s.424A has not actually been litigated and decided, special circumstances may prevail to allow the Applicant to raise that issue in a subsequent proceeding. If the Court found that special circumstances existed then the Court may exercise its discretion to allow that issue to be raised even though it is an issue that should have been litigated in earlier proceedings (Wong at [38]).

The authorities are settled that special circumstances must exist before an applicant will be allowed to raise such an issue (Ling v Commonwealth of Australia (1996) 139 ALR 159). Special circumstances must be exceptional and may involve consideration of a wide range of factors (Wong at [38]). It was common ground between both parties that there is no authority of which either was aware in which being unrepresented in a proceeding, of itself, has been held to be a special circumstance.
However, in the matter before this Court the Applicant was represented before the Tribunal by Parish Patience and had some assistance before Madgwick J. The overwhelming inference, and indeed the inference I draw, from the engagement by the Applicant of advisors in the past is that the Applicant was aware of his right to representation and how to go about securing such representation. There is no evidence before me at all from the Applicant as to any reasons why he was not represented before the Federal Court and subsequent Courts. Whilst it may be possible to speculate whether or not being unrepresented could ever amount to special circumstances, clearly, in this matter, they do not.
Accordingly, there is either a res judicata between these parties or the issue raised in the application before this Court was an issue incorporated into the grounds before the Federal Court and was therefore determined. Even if the issue was held not to be actually litigated and decided before, there are no special circumstances that would permit the Applicant to raise the issue in this proceeding. I also have regard to submissions quoted by Driver FM in SZBXA v Minister for Immigration [2004] FMCA 96 at [9], where the First Respondent submitted:
“An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant’s stay in Australia: NALE v Minister for Immigration [2003] FMCA 366 at [12]. Even if an ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner: Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.”

In the circumstances of this case, for the Applicant to file an application in this Court, where he has already pursued all his rights of appeal in relation to judicial review of the Tribunal’s decision in which he asserts that the Tribunal’s decision is affected by jurisdictional error and is therefore a privative clause decision, is unjustifiably vexatious and oppressive and is likely to bring the administration of justice into disrepute. Moreover, his conduct leads to the overwhelming inference, which I draw, that his application before this Court is filed for the collateral purpose of extending the period of his stay in Australia.
In the circumstances, it is an abuse of the Court’s process for the Applicant to file an application in this Court seeking further judicial review of the Tribunal’s decision, dated 19 July 2005, and the Applicant should not be allowed to file any further proceeding in respect of the Tribunal’s decision without leave of the Court.

Conclusion

Accordingly, the decision of the Tribunal, dated 19 July 2005, is not affected by jurisdictional error and is therefore a privative clause decision. In the circumstances, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
Further, having found that the Applicant’s application before this Court to be an abuse of process, for the same reasons, it is appropriate an order be made that the Applicant not be permitted to file any further application seeking review of the decision of the Tribunal, dated

11 June 2003, without leave of the Court.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 12 September 2006