SZGZP v Minister for Immigration
[2005] FMCA 1667
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZP v MINISTER FOR IMMIGRATION | [2005] FMCA 1667 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is “privative” clause decision – issues of res judicata, Anshun estoppel, abuse of process, vexatious proceedings and incompetent. |
Federal Magistrates Act 1999 (Cth), ss.14, 15
Migration Act 1958 (Cth), ss.91x, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004)
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004)
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004)
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004)
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004)
SZCATT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004)
| Applicant: | SZGZP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2239 of 2005 |
| Delivered on: | 4 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitor for the Respondent: | Ms S Burnett of Clayton Utz |
ORDERS
The application of the Minister for Immigration & Multicultural & Indigenous Affairs dated 20 September 2005 be upheld.
The applicant’s (SZGZP) application filed on 18 August 2005 is dismissed.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 November 2001 and handed down on 6 December 2001 be accepted for filing except with leave of this Court.
Pursuant to Rule 13.11(3) of the Federal Magistrates Court Rules 2001 (Cth) the applicant may not institute any proceeding against the Minister for Immigration & Multicultural & Indigenous Affairs or any of her delegates without leave of this Court.
The applicant is to pay the costs and disbursements of the respondent of and incidental to the application on an indemnity basis in the sum of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2239 of 2005
| SZGZP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed in Court on 20 September 2005, the respondent seeks an order that the application filed in the Federal Magistrates Court of Australia on 18 August 2005 be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Act 1999 (Cth).
In the alternative, by a Notice of Objection to Competency filed in Court on 20 September 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that it was not filed within 28 days of notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submits that the application should be dismissed as this Court does not have jurisdiction to hear it.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on
18 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 November 2001 and handed down on 6 December 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 15 March 1999 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZGZP”.
For the purpose of the respondent’s application, the respondent tenders and applies for the affidavit of Sharon Anne Burnett sworn on
26 September 2005 to be admitted into evidence.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 12 January 1999. On 14 January 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 15 March 1999 the delegate refused to grant a protection visa and on 22 March 1999 the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant attended a hearing before the Tribunal on 21 March 2000. The then presiding Tribunal member failed to make a decision in the matter before resigning his appointment on 31 January 2001. The matter was reconstituted on 13 August 2001. In view of the obvious delays in making findings on evidence presented at the beginning of 2000, the newly-constituted Tribunal set the manner for a fresh hearing on
24 October 2001. The hearing was conducted without the assistance of an interpreter. The applicant was represented by an adviser who did not attend the hearing. He brought forward no witnesses (Tribunal Decision and Reasons, p.2). The Tribunal affirmed the decision of the delegate not to grant a protection visa on 13 November 2001 and handed down its decision on 6 December 2001.
Litigation history
Ms Burnett, Solicitors for the respondent, prepared a convenient summary of the litigation history of the application which I have adopted and reproduced as follows:
On 19 December 2001, the Applicant commenced in the Federal Court of Australia proceedings NSD1632 of 2001 in which he sought review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 13 November 2001 (the “Tribunal’s decision”). Those proceedings were dismissed by Allsop J on 26 August 2002.
On 12 September 2002, the Applicant appealed to the Full Federal Court of Australia against the decision of his Honour Justice Allsop. On 5 March 2003, their Honours Justices Hill, Goldberg and Conti dismissed the appeal pursuant to Order 52, Rule 38(1)(a) of the Federal Court Rules due to the non-appearance of the Applicant.
On 13 March 2003, the Applicant filed a notice of motion seeking to have the orders of the Full Federal Court set aside. On 3 April 2002, their Honours Justices Hill, Goldberg and Conti dismissed the Applicant’s notice of motion.
On 15 April 2003 the Applicant applied for Special Leave to Appeal in the High Court of Australia. On 12 March 2004 their Honours Justices Gummow and Callinan dismissed the Applicant’s application for Special Leave.
On 8 April 2004 the Applicant filed a draft Order Nisi application in the High Court of Australia. On 23 August 2004 his Honour Justice Heydon remitted the further proceedings in the draft Order Nisi application to the Federal Court. Those proceedings became Federal Court proceedings NSD1467 of 2004. On 2 November 2004, his Honour Justice Madgwick of the Federal Court dismissed the application for Order Nisi.
On 24 March 2005, the Applicant filed an application for special leave to appeal in the High Court of Australia. On 1 August 2005, Justices Gummow and Kirby dismissed the application for special leave to appeal.
On 18 August 2005, the Applicant commenced these proceedings in respect of the Tribunal’s decision.
Respondent’s application
Ms Burnett, Solicitor appearing for the respondent, provided written submissions in support of her application and I have adopted paragraphs 4-21 for the purpose of this judgment:
4.It is an abuse of this Honourable Court’s process for the Applicant to attempt to reagitate:
(a)the decision of Allsop J and Madgwick J;
(b)the decisions of the Full Federal Court; and
(c)the decision of the High Court.
(collectively the “Prior Proceedings”).
5.Two of the grounds of review in these proceedings are the same, or substantially the same, as those raised before Allsop J. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any grounds of review not raised in the Prior Proceedings, the Applicant should be estopped from raising those grounds (Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589).
6.These proceedings are an abuse of process in light of the Prior Proceedings.
7.The application for an order of review filed by the Applicant in proceedings NSD1632 of 2001 raised no grounds of review which could be said to be a ground of review under section 39B of the Judiciary Act. In essence, the Applicant sought a review of the merits of the Tribunal’s decision.
8.At the hearing before his Honour Justice Allsop, the Applicant raised allegations of bias and lack of good faith, the rejection of documents by the Tribunal which he had submitted to the Tribunal, the failure of the Tribunal to deal with his earlier material and the fact it concentrated upon the present day current events as at October/November 2001.
9.In his draft order nisi, filed in the High Court of Australia and subsequently remitted to the Federal Court the Applicant sought relief on the following grounds:
(a)the Tribunal did not follow the proper procedure as required by the Migration Act 1958 (“Act”);
(b)the Tribunal’s decision was affected by an error of law and jurisdictional error due to lack of procedural fairness;
(c)there was no evidence or other material to justify the making of the decision;
(d)the Applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the First Respondent;
(e)there was a constructive failure of jurisdiction in relation to the decision of 15 March 1999, in that there was a failure to address the correct legal question;
(f)there was a failure in the decision of 15 March 1999 because the Minister’s delegate did not reach a state of satisfaction based upon a correct understanding of the law;
(g)the decision of the Minister was made in breach of the rules of natural justice.
10.In the present proceedings, the Applicant raises grounds of review in respect of the same decision of the Tribunal that were the subject of review in the Prior Proceedings. The grounds, which are not particularised, are stated as follows:
(a)the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding the Applicant’s persecution and did not take into consideration the oral evidence that was given before the Tribunal hearing;
(b)the Tribunal denied the Applicant natural justice in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it is vitiated by the purported decision;
(c)the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the Applicant procedural fairness in that the Tribunal failed to investigate his genuine claims;
(d)“I did not provide my transcript of RRT hearing;
(e)the Tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision;
(f)the Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look;
(g)as a political activist and I myself victim of systematic torture because of my political opinion;
(h)I refer to High Court decision Plaintiff S157/2002 v Commonwealth of Australia.”
11.The elements that must be established to invoke res judicata were outlined by Lindgren J in Wong v MIMIA (2004) 204 ALR 722 at [43], namely that:
(a)there has been a final curial judgment based on the establishment or failure to establish a cause of action;
(b)the later proceedings raise the same, or substantially the same, cause of action; and
(c)the parties to the two proceedings are the same.
12.The first element referred to by Lindgren J is established in this case by virtue of the orders made by Allsop J in proceedings NSD1632 of 2004.
13.The second element referred to by Lindgren J is established in respect of the grounds of review outlined at paragraphs 10(b) and 10(e) because those grounds of review were raised in the proceedings before Allsop J. However, if they differ in form, they do not differ in substance. It is sufficient to establish the second element of res judicata referred to by Lindgren J where the grounds raised in the later proceedings are the same in substance as those raised in the Prior Proceedings (Somanader v MIMIA (2000) 178 ALR 677 at [52]).
14.As the parties to both the Prior Proceedings and these proceedings are the same, the third element of res judicata referred to by Lindgren J is established.
15.The doctrine of res judicata prevents the Applicant from reagitating the grounds referred to in paragraph 13. There is no discretion in the Court to allow these proceedings to continue if the Court is satisfied that res judicata applies (Somanader at [44]).
16.In relation to the remaining grounds of review raised by the Applicant in these proceedings, the First Respondent submits that they could have been raised in the proceedings before Allsop J. There are no “special circumstances” which warrant the Court declining to apply the Anshun principle in these proceedings.
17.It is no bar to the operation of the principle explained in Anshun that there have been developments in the law since the Prior Proceedings were dismissed. In Applicant A210 of 2002 v MIMIA [2004] FCA 286, Whitlam J in the Federal Court of Australia discussed the application of the Anshun principle in circumstances where there had been developments in the law since prior proceedings. His Honour said that:
The reasons for judgment in the Federal Magistrates Court show that the particulars of the amended grounds in the current proceeding agitate the same kind of matters as were relied on in that earlier proceeding. Mr Silva submits, however, that the grounds of review in the two proceedings are different and do not overlap. He instances the issue of the Tribunal’s intent, which, he says, is of central importance to the question of a want of bona fides, but of no necessary significance to an allegation of denial of natural justice. That may be so, but such a ground should have been raised in the earlier proceeding. It was unreasonable for the applicant not to do so at that time and he is estopped from doing so now according to the principle laid down in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is true that important High Court decisions on natural justice were handed down shortly before the judgment in the Federal Magistrates Court and have been handed down since that time, but such circumstances do not permit the applicant to rerun under that rubric what is in substance the same case as the one he has already lost.”(emphasis added)
18.The applicant should be estopped from pursuing this ground by reason of the principle explained in Anshun. As stated by Madgwick J in proceedings N1467 of 2004:
“In my opinion, no arguable case of jurisdictional error is shown by the Tribunal. Moreover, in view of the long and unsatisfactory delays, I think that no arguable case for the Court exercising its discretion in relation to matters so old has been shown. Finally, considerations of Anshun estoppel would dictate beyond the possibility of any reasonable argument the denial of relief now to the applicant.”
19.In light of the Prior Proceedings, these proceedings are self evidently an abuse of process and warrant dismissal: Lindsey v Phillip Morris Ltd [2004] FCA 797. The Applicant sought relief in courts of competent jurisdictions and has provided no reason why, in light of the numerous applications made to the High Court, these proceedings should not be primarily dismissed.
20.Further, there is no reasonable cause of action disclosed in the Applicant’s application for review in these proceedings: see S635/2003 v MIMIA [2004] FCA 1162. The Tribunal rejected the Applicant’s application for a protection visa because it rejected the factual material the Applicant put forward to the Tribunal in support of his claims. As stated by Allsop J in proceedings N1632 of 2001, “This Court is not a factual appeal”.
21.The Respondent submits that:
(a)in view of the numerous proceedings instituted by the Applicant;
(b)the repetition of similar allegations and arguments as those already rejected;
(c)because the proceedings are obviously untenable and/or manifestly groundless as to be utterly hopeless,
the proceedings are vexatious: Re Cameron (1996) 2 QdR 218 at 220.
Reasons
This matter was scheduled for hearing at 10.15 a.m. However the matter did not immediately proceed at that time because there was no appearance by the applicant. Neither the Court nor the respondent solicitor had received any communication from the applicant indicating whether he intended to appear before the Court at the scheduled hearing. The matter was called before me at 11.15 a.m. but there was no appearance by or on behalf of the applicant.
The applicant appeared before me on 20 September 2005 at a first Court date directions hearing and at that time the respondent’s solicitors indicated that they intended to seek an interlocutory application on the grounds set out in paragraphs 1 and 2 above. The respondent’s solicitors on that date filed in Court the application seeking dismissal and a Notice of Objection to Competency. Copies of those documents were supplied to the applicant on that date. I made directions on that occasion that the interlocutory application would be heard today, 4 November 2005 at 10.15 a.m. in this Court. No objections were raised by either party in respect of the scheduled timetable or the date for the hearing. The final orders setting out that information were made on that date and a copy provided to the applicant at the conclusion of the directions hearing. As part of those orders, the applicant was required to file and serve an outline of submissions in reply to the respondent’s outline of submission by
3 October 2005 together with any affidavit material in support of his response to the application. Nothing has been received by this Court in respect of those orders.
I am satisfied that the applicant was fully aware of today’s scheduled hearing, his requirement to attend and the issues that were to be considered during the scheduled hearing. In view of the applicant’s previous litigation history and the contents of his latest application for review of the Tribunal’s decision, I intend to proceed with the hearing in his absence pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth). In making this decision, I am guided by the decision of his Honour Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue of re-invigorating a proceeding may have been pursued to extend the applicant’s stay in this country. Reference is also made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where his Honour Driver FM states:
“It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.”
In making this decision, I am also guided by the submissions of Ms Burnett that two grounds of review in these proceedings are the same, or substantially the same, as those raised before Allsop J. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any ground of review not raised in the prior proceedings, the applicant should be estopped from raising those grounds: Port of Melbourne Authority v Anshun Pty Ltd (“Anshun”). Pursuant to s.477(1A) of the Act, the application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on
18 August 2005 and seeks review of the Tribunal’s decision made on 13 November 2001, handed down on 6 December 2001 which is a period only slightly less than four years.
In the interim period an application for a review of the decision of the Tribunal has been listed in the Federal Court, the Full Federal Court and a special leave application to the High Court. An application for order nisi in the High Court was remitted to the Federal Court and subsequently dismissed. A new application for special leave was again made to the High Court but was dismissed. No error has been found in the Tribunal’s decision. Although the applicant was invited to do so, he has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decision of his Honour Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM and the Minister’s application was based on an assertion of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether the decision of the Tribunal is a privative clause decision for the purpose of any proceedings in this Court and that issue has been conclusively determined by previous hearings and confirmed on appeal by the Federal Court, this Court is bound by the decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCATT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did, as set out in its decision, and there is no basis upon which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s objection to competency should be upheld.
I believe that the submissions made by Ms Burnett in support of her application are correct but I do not believe that it is necessary for me to consider those submissions in my reasons for my decision as I do not believe that this Court has the jurisdiction in light of my reasoning above.
Conclusion
The application filed on 18 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The respondent’s Notice of Objection to Competency is upheld and the applicant’s substantive proceedings should be dismissed.
I am satisfied that an order for costs should be made in this matter on an indemnity basis. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 14 November 2005
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