SZHGY v Minister for Immigration - [2006] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 223

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent.

Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZATC v Minister for Immigration [2004] FMCA 521
SZATC v Minister for Immigration& Multicultural & Indigenous Affairs
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498

Applicant:

SZHGY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2851 of 2005

Delivered on:

9 February 2006

Delivered at:

Sydney

Hearing date:

9 February 2006

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of a Bengali interpreter.

Advocate for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The first respondent’s Notice of Objection to Competency filed on

19 October 2005 is upheld.
The application for judicial review filed on 5 October 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 D Kelleghan File No: NO2/44286) made on 2 May 2003 and handed down on 27 May 2005 or the decision of the Delegate of the Minister for Immigration (File No: CLF2002/21678) handed down on 22 August 2002, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,000 on an indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2851 of 2005

SZHGY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Objection to Competency filed on 19 October 2005, the first respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
a)the decision is a private clause decision.
b)contrary to s.477(1A) of the Migration Act 1958 (Cth) (“the Act”), the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and
c)by virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, the applicant to lodge an application outside the period specified in s.477(1A).
In the alternative, by a Notice of Motion filed on 19 October 2005, the first respondent seeks the following orders:
a)The proceedings be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as an abuse of the process of the Court.
b)That no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 27 May 2003 be accepted for filing except by leave of the Court.
c)The applicant pay the respondent’s costs.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) and invoking s.475A of the Act. It was filed on 5 October 2005 in the Sydney Registry of the Federal Magistrates Court for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 May 2003 and handed down on 27 May 2003. The Tribunal affirmed the decision of the delegate of the first 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 Objection to Competency and Notice of Motion, the first respondent tendered and applied for the affidavit of Kristy Lee Alexander, sworn on 17 October 2005, to be admitted into evidence.
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 “SZHGY”.

Background

The applicant is a citizen of Bangladesh and arrived in Australia on

16 March 2002. On 12 April 2002 he lodged an application under the Act for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). On 22 August 2002 the delegate for the Department refused to grant a protection visa and on 9 September 2002 the applicant applied for a review of the delegate’s decision (Affidavit of Ms Alexander p.5).
The Tribunal summarises the applicant’s factual claims in which are contained in pages seven to eight in Ms Alexander’s affidavit.
The applicant claims that in early 2001 he had converted to the Ahmadiyya faith from the Sunnis faith. He had participated in Ahmadiyya seminars. His family and neighbours and friends had hated him over his decision to become Ahmadi and eventually his family asked him to leave the home to avoid bringing shame on the family. He went to live with another Ahmadi believer. The applicant’s brother suggested that he leave Bangladesh to let the memory of his conversion to the Ahmadi die in the circle of those people who knew his family. His brother offered to finance his stay in another country. The applicant went to India but was not able to find good employment there, so he returned to Bangladesh.
In December 2001, he was injured when a crowd was attacked at an Ahmadiyya gathering at Bakshi Bazaar in Dhaka where the Ahmadiyyas had a large mosque. Many people had by then realised that he was an Ahmadiyya. He became widely hated and began receiving threats from people, including from his family, who were trying to hunt him down in order to harm him.
Finally he decided to come to Australia for safety and in order to practice his religion without hindrance. He claimed he had feared persecution over his faith in Bangladesh.

Litigation history

The affidavit of Ms Alexander also provides a convenient summary of the litigating history of the applicant, which I have adopted and reproduce as follows:
(a)On 11 August 2004, Barnes FM dismissed the application for a review of the Tribunal’s decision;
(b)On 6 September 2004, the applicant filed an application for an extension of time to file and serve a notice of appeal from the decision of Barnes FM;
(c)On 28 October 2004, Allsop J dismissed the application for an extension of time to file and serve the notice of appeal with costs;
(d)On 25 November 2004, the applicant filed an application for special leave to appeal from the Judgment of Allsop J in the High Court;
(e)On 8 September 2005, Hayne and Callinan JJ dismissed the application for special leave to appeal;
(f)On 5 October 2005, the applicant filed a further application under s.39B of the Judiciary Act 1903 (Cth) in this Court seeking review of the same decision of the Tribunal dated 21 May 2003.

First respondent’s application

Mr A Markus, appearing for the respondents, provided written submissions prepared by Mr A Crockett in support of the Minister’s application and I have adopted paragraphs 14-28 for the purpose of this judgment:
[14] In the first respondent’s submission, it is not necessary for the Court to analyse in detail the grounds for speaking judicial review as set out in the present application. Rather, in light of the first respondent’s notice of objection to competency, the Court need only be satisfied that:
(a)the applicant by his original application for review invoked the same jurisdiction as the present application (ie. s.483A of the Act);
(b)the present application seeks the same relief as that sought by the original application (although the relief sought by the present application is not in terms identical to that sought by the original application, the desired result is the same – ie. to quash the decision of the Tribunal and remit the matter to it for reconsideration according to law);
(c)the Court made a finding to the effect that the decision is a privative clause decision and an application for extension of time in which to appeal that judgment was dismissed by the Federal Court and not cast doubt on by the High Court. Although none of the courts expressly say that the decision is a privative clause decision, in the context of the application before each of them and the orders made, and (if necessary) on examination of their respective reasons, it is clear this was the case. In particular Barnes FM found that no jurisdictional error was established.
[15]Accordingly, an issue estoppel on the first respondent’s notice of objection would arise by reason of the judgment of Barnes FM: see, for example, SZAFO v MIMIA [2005] FMCA 885 per Smith FM at [2], [7] and [15].
[16]In the event that the Court is not minded to accept this submission, the first respondent relies on the submission below.
[17]It is well established that for res judicata to operate:
(a)there must have been a final judgment by a judicial tribunal acting within its jurisdiction, and that judgment must be based on the establishment or failure to establish a cause of action;
(b)the later proceeding must raise the same cause of action; and
(c)except where the prior judgment was in rem, the parties of the two proceedings must be the same.
[18]Where res judicata applies it is a complete bar to a new claim, because the cause of action is extinguished by the first judgment and the Court does not have a discretion to ameliorate the application of the doctrine.
[19]Issue estoppel arises where in a subsequent action a party claims that “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.”
[20]The first respondent submits that the applicant is estopped from bringing the present application by reason of res judicata and/or issue estoppel.
[21]In the event the Court is not of the view that res judicata (in respect of the present application) and/or issue estoppel (in relation to the grounds of the present application) arise, it is submitted that principles of Anshun estoppel would apply.
[22]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”. 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 an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties.
[23]In the absence of special circumstances, the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments which could have been advanced in the previous proceedings.
[24]The applicant has not pointed to any such special circumstances as to why the issues were not canvassed in the earlier proceedings which would enable the Court to exercise its discretion to allow the present proceedings to continue.
[25]In any event, even if the circumstances do not give rise to an estoppel, the present proceeding should nonetheless be dismissed as an abuse of the process of the Court.
[26]Rule 13.10(c) of the Federal Magistrates Court Rules deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court.
[27]In Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said:
[Extract omitted]
[28]In the first respondent’s submission, the present proceeding is an abuse of the process of the Court: see, for example, SZGGS v MIMIA [2005] FMCA 1071 at [10] per Driver FM.

Applicant’s submissions

The applicant filed written submissions headed “My Submission”, which does not specifically address the issues before the Court, but rather provides a general background of his original application together with references to alleged legal errors. The document also sets out the problem he faces in obtaining documentation from Bangladesh supporting his claims that he is a member of the Ahmadiyya sect.

Reasons

Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 5 October 2005 and seeks review of the Tribunal decision made on 2 May 2003 and handed down on 27 May 2003, which is a period of approximately 44 months. In the interim period, an application to review the decision of the Tribunal had been listed in the Federal Magistrates Court before Her Honour, Barnes FM, in the Federal Court before His Honour, Allsop J and a special leave application was made to the High Court. That special leave application was dismissed by their Honours Hayne and Callinan JJ. No error has been found in the Tribunal’s decision.
The Notice of Objection to Competency raises the issue of whether the decision of the Tribunal is a privative clause decision as defined under s.474 of the Act. If the respondent succeeds in this contention, then the Court would be barred from giving relief sought by the applicant, and the applicant’s present application would be out of time under s.477(1A). The respondent objection to competency would succeed if, applying Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the Court held that the Tribunal’s decision was not affected by any jurisdictional error.
In the original proceedings in this matter before Her Honour Barnes FM, contained in the decision of SZATC v Minister for Immigration [2004] FMCA 521 at [12], Her Honour found:
[12]It is apparent from the Tribunal reasons for decision that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its findings that the applicant was not credible and that his claims were fabricated. Such findings are matters of fact for the Tribunal par excellence: MIMA, Re; Ex parte Durairajasingham (2000) 168 ALR 407 [67]. The Tribunal findings were open to it on the material before it for the reason that it gave and no error is demonstrated in such conclusions. The court cannot review the merits of the Tribunal’s decision. Since no jurisdictional error has been established the application must be dismissed. (Affidavit of Ms Alexander pp.27 and 28)
The applicant exercised his right of appeal to the Federal Court in proceedings NSD1304 of 2004 which was heard by His Honour Allsop J. The applicant had failed to initiate his proceedings in the Federal Court within the required time limit and consequently sought an extension of time to file and serve a notice of appeal.
His Honour dismissed this application on 28 October 2004. He concluded at [9]:
It should be understood by the applicant that this is not a final dealing with any appeal. It is an interlocutory judgment in which I refuse to exercise a discretion because I am not persuaded that there is any arguable error in the Federal Magistrate’s Reasons. (Affidavit of Ms Alexander p.42)
The applicant then exercised his right to seek special leave to appeal to the High Court and filed an application on 25 November 2004 in proceedings S459 of 2004. The matter came before their Honours Hayne and Callinan JJ on 8 September 2005 with 28 other similar applications dealt with by the Court at that time. His Honour Hayne J in the transcript of proceedings made the following observations:
It is convenient, and appropriate, to deal with these applications together because each application, and the material filed in support of each application, is substantially identical. Although the papers filed in each matter give some short description of facts and circumstances said to be particular to the applicant, the body of each written application and argument in support is substantially identical. Apart from the statement of facts, and in the names of the applicants, the dates of the relevant procedural steps, and the names of the relevant judicial officers have been changed.
…
…In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the court below or in the Tribunal, which in any event in each case appears to us to have been entirely orthodox and untainted by any discernable error.
…
None of these applications will enjoy any prospect of success. (Affidavit of Ms Alexander p.50)
I am satisfied that the requirements set out in the respondent’s submissions at [14], namely:
a)The original application for review invokes the same jurisdiction as the present application;
b)The present application seeks the same relief as sought by the original application;
c)Although not expressly stated, the courts made findings to the effect that the decision is a privative clause decision; and
d)An issue estoppel on the first respondent’s notice of objection would arise by reason of the judgment of Barnes FM: SZAFO v MIMIA per Smith FM at [2], [7] and [15].
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 that the time limit under s.477(1A) of the Act should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498, 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 per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 per Conti J.
Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 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 the decisions 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 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.
In making this decision, I am also guided by the submissions of Mr Markus that the grounds of review in these proceedings are the same, or substantially the same, as those raised before Her Honour Barnes FM. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any grounds for review not raised in previous proceedings, the application should be estopped from raising those grounds: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. I believe that the submissions made by Mr Markus in support of his application are correct, but I do not believe it is necessary for me to consider those submissions in my reasons for my decision as I do not believe that this Court has jurisdiction in light of my reasonings above.

Conclusion

The application filed on 5 October 2005 relate 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(1) of the Act. The respondent’s 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 on an indemnity basis. I order the applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the amount of $3,000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 24 February 2006