SZHGO v Minister for Immigration

[2006] FMCA 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGO & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 185

MIGRATION – Application for summary dismissal – abuse of process. 

Migration Act 1958(Cth), s.424A
Commonwealth of Australia Constitution Act 1901 (Cth), s.75(v)

Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601
Applicant A376 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 222
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Port of Melbourne Authority v Anshun Pty Limited (1981) 247 CLR 589
Walton v Gardiner (1993) 177 CLR 378

Applicant: SZHGO & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2836 of 2005

Judgment of: Barnes FM

Hearing date: 6 February 2006

Delivered at: Sydney

Delivered on: 6 February 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 4 October 2005 is summarily dismissed on the ground that:

   (a)the doctrine of res judicata applies and there is a complete bar to the application; in the alternative,

   (b)the doctrine of issue estoppel applies and there is a complete bar to the application; in the alternative,

   (c)     Anshun estoppel applies and there are no special circumstances to justify its non application; and in the alternative,

   (d)pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules the proceedings are an abuse of process.

2. The first and second applicants pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2836 of 2005

SZHGO & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This application comes before the court by way of a notice of motion filed by the first respondent seeking summary dismissal of an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  Also before the court is a notice of objection to competency.  The background to these proceedings is, relevantly, that the applicants, who are citizens of India, arrived in Australia in 2000.  They applied for protection visas.  The applications were refused and they sought review by the Tribunal. 

2. On 25 June 2002 the Tribunal handed down the decision affirming the decision of the delegate to refuse the application.  On 23 July 2002 the applicant lodged an application for judicial review in the Federal Court.  That application sought review on grounds that the Tribunal failed to take into account and or misinterpreted the relevance of a warrant of arrest, that the Tribunal failed to consider certain submissions and misinterpreted country information and other applicable information. However on 28 August 2002 the applicant lodged a notice of discontinuance of those proceedings.  The applicant at that stage was legally represented and the proceedings were discontinued by consent. 

3. After the proceedings were discontinued the applicant filed a notice of motion and supporting affidavit on 11 September 2002 seeking to set aside the notice of discontinuance and leave to file an amended application.  On 31 October 2002 Beaumont J dismissed the applicant's notice of motion with costs.  However, he suspended the operation of that order up to and including 20 November 2002 and gave liberty to any party to apply to vary or discharge the dismissal upon giving three days notice in writing accompanied by an outline of submissions stating the substantive basis said to justify the orders that had been sought by the notice of 11 September 2002.  There is no evidence of any such application. 

4. Instead, on 13 December 2002 the applicant commenced proceedings in the High Court of Australia pursuant to s.75(v) of the Constitution.  The grounds relied on were that there was a breach of the rules of natural justice, an error of law, a failure to comply with procedures, an improper exercise of power, no evidence and that the decision was otherwise contrary to law.  The applicant was ordered to file and serve written submissions.  He did not do so.  On 7 February 2003 Hayne J remitted the matter to the Federal Court of Australia.  On 16 December 2003 Conti J dealt with the application and dismissed the application with costs. 

5. In his reasons for judgment, reported as Applicant A376 of 2002 v Minister for Immigration&Multicultural& Indigenous Affairs [2004] FCAFC 222 Conti J set out the grounds relied on and the history of the proceedings before him. An amended application had been filed by the applicant specifying in more detail three grounds: a lack of procedural fairness on the basis deal with in Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601, that the Tribunal failed to put certain country information to the applicant or its view that documents provided were forgeries and that did not consider relevant information consisting of certain evidence before it.

6. His Honour described the prior proceedings and recorded that despite the orders that had been made by Beaumont J allowing the applicants a period of three weeks to file and serve written submissions, no such submissions were ever filed or served but rather six weeks later the applicants had commenced the proceedings in the High Court.  His Honour stated that he put to one side potential questions of issue or Anshun estoppel by virtue of the failure of the applicants to pursue their application in accordance with the orders of the court in respect of the original proceedings.  Conti J found that the application for mandamus was out of time and refused an enlargement of time.  His conclusion was said to be strengthened by the circumstance that the application was devoid of merit and must be dismissed in any event.  He then gave detailed reasons for dismissing the substantive application by reference to the Tribunal decision and the grounds relied on by the applicants. 

7. After considering each of the grounds raised by the applicant his Honour concluded that the application must be dismissed and stated at [42] that even if it had been made on a timely basis in respect of mandamus “no relevant error in the Tribunal's reasons for decision or in its conduct of the review of the decision of the Ministers delegate has been exposed”. 

8. On 30 December 2003 the applicant lodged a notice of appeal to the Full Court of the Federal Court. He contended that Conti J was in error in not identifying an error of law and also that there was a breach by the Tribunal of s.424A of the Migration Act 1958 (C’th). In proceedings reported as Applicant A376 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 222 the Full Court dismissed the application. It also dismissed an application to amend the notice of appeal to raise two new grounds that had not been canvassed before Conti J which were the only grounds sought to be relied on. These grounds were that the Tribunal made a jurisdictional error by making credibility findings without evidence and that the Tribunal was unreasonable when it did not accept that the applicant's activities were illegal. The Full Court had regard to the absence of any satisfactory explanation as to why such matters were not raised before the primary judge and expressed the view that the merits on the part of the appellant were not sufficiently strong to warrant the court exercising its discretion in favour of allowing the amendments. The application was dismissed.

9. The applicant then lodged an application for special leave to appeal to the High Court on 9 September 2004, contending that the applicant should have been given leave to raise new grounds.  On 8 September 2005 Hayne and Callinan JJ refused the application for special leave to appeal. 

10. On 4 October 2005 the applicant commenced the present proceedings in this Court seeking judicial review of the Tribunal decision.

    
    

    The applicant relies on an application which contends that the Tribunal committed a jurisdictional error because of findings which were procedurally unfair and manifestly unreasonable. 

11. The applicant attended a directions hearing at which the matter was listed for the hearing of the notice of motion filed by the respondent.  Among other things the applicant was ordered to file and serve any affidavit evidence in response to the notice of motion by 6 December 2005. 

12. The legal representative for the respondent sought that the court deal with the notice of objection to competency and in the alternative pursued the grounds in the notice of motion.  In the circumstances of this case, having regard to the history set out above, I consider it preferable to deal with the grounds raised in the notice of motion first.  For the reasons given below I am satisfied that the application should be summarily dismissed.  Hence it will not be necessary to canvass the precise circumstances in which a notice of objection to competency can be upheld and whether it should be in this case. 

13. There are a number of bases on which the respondent contends that the application should be summarily dismissed.  First, it is contended that, as the applicant is seeking review of the same Tribunal decision that was the subject of the previous judicial review proceedings the doctrines of res judicata and issue estoppel apply.  The substratum of facts giving rise to the right of review are the same, the substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not in any material respect differ (see in particular Merkel J in Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192). In each case the applicant sought review of the Tribunal decision on grounds that have the necessary commonality for principles of res judicata to apply. 

14. There have been two prior sets of proceedings.  The initial proceedings were discontinued by consent.  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.  Further, that while the proceedings were dismissed by consent, when it was sought to have those orders set aside Beaumont J allowed the applicant an opportunity to put on written submissions with substantive reasons.  He did not do so.

15. I have had regard to what was said by Wilcox J in Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [18] in considering whether a subsequent application sought to re-litigate the same claim for relief. His Honour stated that it mattered not that the re-litigation was intended to be based upon an argument that was not previously advanced. I am satisfied in this instance that there is the requisite commonality. The applicant seeks to relitigate the same claim for relief. Res judicata applies as does issue estoppel as a complete bar to the application.

16. Even if that is not the case and the doctrine of res judicata or issue estoppel 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) 247 CLR 589. Anshun estoppel prevents a party from raising in subsequent litigation issues which properly belonged to the subject of earlier litigation where it would have been unreasonable for the applicant not to have relied on them.

17. It remains open to the court to allow the later proceedings to continue if special circumstances exist which warrant departure from the prima facie operation of the estoppel.  In this instance the grounds raised in the present application could have been raised in either of the earlier applications at the appropriate time in the course of those proceedings.  It was unreasonable for the applicant not to have done so.   

18. I have considered whether special circumstances are present which would enliven the discretion to refrain from the application of the Anshun estoppel doctrine.  I do not consider that the fact that the first proceedings were dismissed by consent are a circumstance that prevents the operation of the doctrine or constitutes special circumstances.  Nor do I consider that the grounds raised by the applicant which are said in the applicant's outline of written submissions to be ‘exceptional’ are such as to constitute special circumstances. 

19. There is nothing in the material before me to suggest that there is any reason why such grounds could not have been raised in the prior proceedings.  I do not consider that special circumstances have been established and I am satisfied that Anshun estoppel operates as a bar to the proceedings.

20. The circumstances that give rise to an operation of the principles of Anshun estoppel are also such as to go towards establishing that the proceedings should in any event be dismissed as an abuse of process.  The applicant's attempt to relitigate what is in essence the same claim for relief on the basis of jurisdictional error is an abuse of process within the meaning of that term as discussed in Walton v Gardiner (1993) 177 CLR 378 see in particular, Mason CJ, Deane and Dawson JJ at 393. The applicant is attempting to relitigate the same Tribunal decision. He had the assistance of legal representation in the first proceedings. The proceedings were discontinued by consent. When he sought to have that order set aside the Federal Court gave him the opportunity to file written submissions setting out substantive grounds and he did not do so. Hence his application for judicial review was finally determined by that consent discontinuance. He thereafter proceeded with an application which commenced in the High Court and was transferred to the Federal Court. It is apparent from the decision of Conti J that he considered the merit of the substantive grounds raised by the applicant and gave reasons for dismissing the substantive application, concluding that no relevant error had been exposed. The applicant has had ample opportunity to bring forward any legitimate claim and to provide evidence in support of any such claims.

21. The repeated bringing of similar applications can be an abuse of process if it would be unjustifiably vexatious or oppressive or bring the administration of justice into disrepute.  This is such a case.  I have also had regard to the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed. 

22. In all the circumstances I am satisfied that the proceedings have been brought for a collateral purpose of extending the applicant's stay in Australia and that they are so obviously untenable or manifestly groundless as to be utterly hopeless.  The first application was determined by the consent dismissal, the second by the decision of Conti J from which an appeal was dismissed and in relation to which special leave to appeal was refused by the High Court. 

23. I consider that the application should be summarily dismissed either because of the principles of res judicata issue estoppel or Anshun estoppel apply and in the alternative as an abuse of process pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001. 

24. The argument is also put on the basis that the proceedings are frivolous and vexatious pursuant to Rule 13.10(b). As I have indicated, the circumstances are such as to establish that the proceedings have been brought for a collateral purpose and are so obviously untenable or manifestly groundless as to be utterly hopeless.  The respondent contended that the current application contains no meaningful particulars of any alleged jurisdictional error on the part of the Tribunal.  The application does not, however, suffer from the generality that afflicts some judicial review applications in this area.  It and the supporting affidavit relate specifically to aspects of the applicant's claims.  That does not save it from falling foul of the principles of res judicata, issue estoppel or Anshun estoppel.  Nor does it mean that the proceedings do not constitute an abuse of process, but it cannot be said that the application is completely lacking in particularity in the manner that is contended.  I consider the proceedings are most appropriately dismissed as an abuse of process. 

25. The respondent also seeks that the adult applicants (the first and second applicants) pay the respondent's costs on an indemnity basis.  In the circumstances of this case where there is an abuse of process I consider that it is appropriate that costs be ordered on that basis.  It is normally my practice to order costs in a set amount and so I will invite the solicitor for the respondent to indicate the amount sought. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  14 February 2006.