SZHBE v Minister for Immigration
[2005] FMCA 1792
•24 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBE v MINISTER FOR IMMIGRATION | [2005] FMCA 1792 |
| 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 a privative clause decision – application for judicial review dismissed. |
Migration Act 1958 (Cth), ss.91X, s.426A(1), 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581
| Applicant: | SZHBE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2439 of 2005 |
| Delivered on: | 24 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an Urdu interpreter.
| Advocate for the Respondent: | Ms J Pownall |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The respondent’s Notice of Motion filed on 28 September 2005 is upheld.
The respondent’s Notice of Objection to Competency filed on
20 September 2005 is upheld.
The application for judicial review filed on 31 August 2005 is dismissed as incompetent.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Ms Roslyn Smidt File No: N02/44264) made on 15 August 2003 and handed down on
11 September 2003 or the decision of the Delegate of the Minister for Immigration handed down on 22 August 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2439 of 2005
| SZHBE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 28 September 2005, the first respondent moved the Court for orders that these proceedings be dismissed as incompetent on the ground that the application relates to a privative clause decision that has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”), or alternatively, the proceedings be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) as an abuse of the Court’s process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 31 August 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
15 August 2003 and handed down on 11 September 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 22 August 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this Notice of Motion, the respondent tendered and applied for the affidavit of Angela Margaret Nanson declared and affirmed on 26 September 2005 to be admitted into evidence (“the affidavit of Ms Nanson”).
A Notice of Objection to Competency was filed by the first respondent on 20 September 2005 objecting to the jurisdiction of this Court to determine this application for an order under the Judiciary Act 1903 (Cth) on the ground that the application relates to a privative clause decision that 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 applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZHBE”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 9 June 2002. On 22 July 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 22 August 2002 the delegate refused to grant a protection visa and on 6 September 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (the affidavit of Ms Nanson, Annexure A p.6).
The applicant claimed a well founded fear of persecution if he returned to India for reasons of his political opinion as an active member of the Congress Party who had been persecuted by supporters of the Telagu Desam Party (“TDP”). The applicant claimed that his persecution was exacerbated because of his romantic attachment to the daughter of the leader of the TDP in his local area.
Litigation history
The affidavit of Ms Nanson contained a convenient summary of the litigation history of the applicant and I adopt paragraphs 5, 7, 8 and 9 for the purpose of this judgment:
[5]On 28 October 2004, that matter came before her Honour Federal Magistrate Barnes of the Federal Magistrates Court of Australia.
[7]On 15 November 2004, the applicant lodged an application for leave to appeal against the decision of the Federal Magistrate in the Federal Court. On 27 September 2004, the matter came before his Honour Justice Gyles for directions. On 9 February 2005, Reasons for Judgment and Orders were given dismissing the application.
[8]On 15 November 2004, the applicant also filed in the High Court of Australia an Application for Special Leave to Appeal the decision of Barnes FM.
[9]On 5 August 2005, the matter came before their Honours McHugh and Heydon JJ who dismissed the application finding there was no reason to doubt the correctness of the decision of the Federal Court.
Respondent’s application
Ms J Pownall, Solicitor appearing for the respondent, provided written submissions in support of her application and I adopt paragraphs 23-34 of those submissions for the purpose of this judgment:
[23]The unparticularised grounds of the application are that the Tribunal:
- denied the applicant natural justice;
- acted in bad faith;
- was biased and prejudged the claim;
- failed to observe procedure;
- failed to consider material facts;
- made errors of fact;
- failed to give proper weight to the evidence;
- failed to inquire into the applicant’s claims.
[24]Insofar as any of the grounds that the applicant now seeks to rely on are different from the grounds raised previously, it is submitted that the doctrine of Anshun estoppel applies in that they are grounds 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’: Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589 at 612-613; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [37]-[39].
[25]In the absence of special circumstances (see BC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 221 at [30]; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [37], Anshun at [602]), the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the previous proceedings.
[26]The applicant has not pointed to any such special circumstances as to why the issues now raised were not canvassed in the earlier proceedings which would enable the Court to exercise its discretion to allow the proceedings to continue.
[27]It is the first respondent’s submission that even if the circumstances do not give rise to Anshun estoppel, the proceedings should nonetheless be dismissed as an abuse of the process of the Court.
[28]Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
[29]In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ said:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.
[30]In the first respondent’s submission, the present proceedings are just such a case. In the first respondent’s submission, the present proceedings amount to an abuse of process because:
- the repeated bringing of applications for judicial review of the same Tribunal decision is unjustifiable, vexatious and brings the administration of justice into disrepute;
- there is an underlying public interest in the finality of litigation;
- the current application for judicial review is devoid of particulars, and fails to disclose any arguable basis; and
- having regard to the applicant’s litigation history, the court may infer that the applicant has brought this application for the collateral purpose of extending the period of his stay in this country:
[31]In the event that the court does not accept the above submissions, the first respondent submits that the proceedings should be dismissed as failing to disclose a reasonable cause of action.
[32]A reasonable cause of action has been held to be a cause of action which has some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant: Davey v Bentinck [1893] 1 QB 185; National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Ltd & Ors (1995) 132 ALR 514 per Lindgren J, cited in Mathews v University of Queensland [2002] FCA 414 per Spender J at [6]. To have such a chance of success, it must state all the material facts necessary to establish the cause of action and relief sought: Mathews v University of Queensland [2002] FCA 414 per Spender J at [6].
[33]The power to dismiss applications seeking judicial review summarily is available where the Court is satisfied that there is not a ‘real question to be determined’: Doumit v Commonwealth [2005] FCAFC 166, and therefore, the proceedings should not be allowed to proceed on trial.
[34]In the first respondent’s submission, it is apparent on the face of the application that the grounds of appeal listed therein are meaningless. They amount to nothing more than bald assertions of error. They give none of the guidance necessary to enable a court to make the orders sought. They cannot amount to a reasonable cause of action.
Applicant’s submissions
The applicant is a self represented litigant and appeared with the assistance of an Urdu interpreter. The applicant appeared before me at the first Court date hearing on 4 October 2005 where a representative of the respondent indicated that they would be seeking to have the matter dismissed and sought a listing for an interlocutory hearing to ventilate their Objection to Competency and Notice of Motion. This was explained to the applicant prior to making orders setting out a timetable for the filing of any additional affidavit material and written submissions in relation to those applications.
The applicant acknowledged his attendance at that hearing and his understanding of the nature of the proceedings before this Court on this date. However, the applicant has not filed any documentation in response to those orders. The applicant sought an extension of time to permit him to prepare his submissions. In support of his application, the applicant filed in Court a medical certificate from a Dr Sheela Kachwaha indicating that he had been treated for gastritis and setting out the treatment regime that he had undergone and his current medication. There was no indication in the doctor’s letter that the applicant was unfit to appear before this Court. The medical certificate had been obtained one day prior to this hearing. Given the litigation history of this matter and the fact that the applicant appeared in Court, I indicated it was not my intention to grant a further extension of time in order to prepare for this hearing. The applicant was invited to make any submissions in respect of the applications being brought by the respondent. He indicated he did not wish to make any submissions.
Reasons
In the initial proceedings brought before her Honour Barnes FM, the applicant asserted several grounds which were generic in form and were not supported by any particulars. The respondent filed a Notice of Motion for summary dismissal of the proceedings. At the hearing of the Notice of Motion, the applicant filed an amended application for review which was in identical terms to the original application except that the amended application was described as amended and contained six unparticularised grounds. The grounds were as follows:
a)there was a breach of natural justice;
b)there was an error of law;
c)procedures were not observed;
d)that there was an improper exercise of power;
e)there was no evidence or other material to justify the making of the decision; and
f)the decision was otherwise contrary to law.
Federal Magistrate Barnes upheld the respondent’s application on the grounds that the Tribunal did not fall into jurisdictional error or breach the laws of natural fairness. Her Honour affirmed that the Tribunal was entitled to exercise its discretion under s.426A(1) of the Act to make a decision on review without taking any further action to allow or enable the applicant to appear before it.
The applicant filed an application for leave to appeal from the decision of Barnes FM together with a draft notice of appeal. The grounds of the proposed notice of appeal alleged that the decision of the Federal Magistrates “failed to find an error of law, jurisdictional error, procedural fairness and relief under s.39B of the Judiciary Act 1903. The draft notice of appeal otherwise sought to challenge the decision of the Tribunal and sought to do so on a basis not pleaded or argued in the proceedings before Barnes FM purporting to rely upon the judgment of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (“Muin”). The grounds also referred to the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia and the Federal Court decision in SGDB v Minister for Immigration & Multicultural & Indigenous Affairs although those references did not raise any arguable error either in respect of the decision of the Federal Magistrate or the Tribunal.
His Honour Gyles J dismissed the application for leave to appeal with costs. His Honour found that the material before the Federal Court did not identify any appealable error in the decision of Barnes FM. His Honour also stated that although it was not his Honour’s task to roam through the papers to find some point for the applicant, his Honour was satisfied there was nothing which had been identified which would amount to appealable error.
The applicant then filed a special leave application to the High Court appealing the decision of the Federal Court. The applicant’s special leave application complained of procedural errors and error of law. The applicant also relied upon Muin but the Court found that the applicant did not demonstrate the necessary factual basis. In dismissing the application, their Honours McHugh and Heydon JJ also found that the applicant raised no error of law that would justify the grant of special leave to appeal nor was there any reason to doubt the correctness of the decision of the Federal Court.
The respondent’s written submissions in respect of the application currently before this Court set out clear argument in respect of the operation of Anshun estoppel, abuse of process and the ground that the original application contained no reasonable cause of action. I accept those submissions as the appropriate statement of the law as it applies to the applicant’s application filed on 31 August 2005. Those submissions have been reproduced in this decision under the respondent’s submissions at paragraph 9 above and I do not believe it is necessary to make further reference to those submissions.
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 31 August 2005 and seeks to review the Tribunal’s decision made on 15 August 2003 and handed down on 11 September 2003, which is a period of approximately two years. In the interim period, the application to review the decision of the Tribunal has been listed in the Federal Magistrates Court, the Federal Court and a special leave application to the High Court. No error has been found in the Tribunal’s decision and the applicant has not shown any reason why this Court should not be bound by those decisions such as the time limit under s.477(1A) should not apply.
I am satisfied that the applicant has been provided with the opportunity to raise any issue that has not been previously considered and decided upon by the Courts referred to above. It is acknowledged that the applicant is faced with difficulty in dealing with a legal system of which he has little knowledge and proceedings conducted in a foreign language. However, on a number of occasions the applicant has complied with the Court requirements to file documents within specified time limits, using the correct Court document and raising relevant issues in the nature of his application. It must be assumed that the applicant has received some assistance to be able to achieve this. When the applicant appeared at the first Court date directions on
4 October 2005, he was advised of the nature of the issue he would have to face at hearing today. However, the applicant has not filed any document or made any oral submission in support of his position. The application seeking judicial review of the Tribunal’s decision has now been before the Courts for two years. All of the issues that the applicant has ventilated have been addressed and rejected by the Courts. The absence of any new issue not previously considered by the Courts, support the view that the applicant has not shown any reason why this Court should not be bound by the provisions of s.477(1A) of the Act.
I am guided by the decisions of 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, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a 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 affirmed on appeal to the Federal Court, this Court is bound by a 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 SZCAT 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 on 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.
The respondent submitted that the litigation history of the applicant clearly raised the inference that the present application has been filed for a collateral purpose for extending the applicant’s stay in Australia and not for a legitimate purpose of seeking judicial review. The applicant has lodged the current proceedings in the fourth attempt to seek review of the same Tribunal decision. The respondent submitted that the repeated bringing of similar applications for judicial review in relation to the same Tribunal’s decision is unjustifiably vexatious and brings the administration of justice into disrepute as there is an underlying public interest that there be finality in litigation. I refer to the decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where 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.”
See also SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs per Jacobson J at [15], [21]-[29].
Conclusion
The application filed on 31 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 2 December 2005
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