SZHQC v Minister for Immigration

[2008] FMCA 1604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1604

MIGRATION – Application to review decision of Refugee Review Tribunal – Tribunal decision the subject of prior judicial review – summary dismissal.

Migration Act 1958 (Cth), s.424A

Attorney General v Wentworth (1988) 14 NSWLR 481
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 205 ALR 198
NALE v Minister for Immigration [2003] FMCA 366
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268
SZHQC v Minister for Immigration & Anor [2006] FMCA 1590
SZHQC v Minister for Immigration and Citizenship & Anor [2007] FCA 305
SZHQC v Minister for Immigration & Citizenship & Anor [2007] HCATrans 735
Walton v Gardiner (1993) 177 CLR 378
White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722

Applicant: SZHQC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2208 of 2008

Judgment of: Barnes FM

Hearing date: 11 November 2008

Delivered at: Sydney

Delivered on: 11 November 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application for judicial review filed on 26 August 2008 be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. That the applicant pay the first respondent's costs on an indemnity basis in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2208 of 2008

SZHQC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of a notice of motion filed by the first respondent on 12 September 2008 seeking that an application filed by the applicant in this Court on 26 August 2008 be summarily dismissed pursuant to Rule 13.10(a), (b) or (c) of the Federal Magistrates Court Rules.

2. The first respondent contended in the notice of motion that the applicant was estopped from bringing the proceedings on the basis of res judicata principles and issue estoppel, that the doctrine of Anshun estoppel applied and that there were no special circumstances to justify its non-application.

3. The application of 26 August 2008 seeks review of a decision of the Refugee Review Tribunal signed on 14 October 2005 and handed down on 10 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  That decision has been the subject of previous judicial review proceedings in this Court, on appeal in the Federal Court and the subject of an application for special leave to appeal to the High Court.

4. The applicant filed an application for judicial review of that decision in this Court on 21 November 2005.  Those proceedings were dismissed by Turner FM on 22 November 2006 (see SZHQC v Minister for Immigration & Anor [2006] FMCA 1590). I note that the initial application to this Court relied on some 13 generally expressed, and for the most part unparticularised grounds set out by Turner FM and addressed in his judgment. Turner FM concluded that none of the applicant's grounds in the application relied on could be sustained and dismissed the application with costs.

5. The applicant filed a notice of appeal in the Federal Court on 7 March 2007.  Downes J dismissed the appeal with costs (see SZHQC v Minister for Immigration and Citizenship & Anor [2007] FCA 305).

6. The notice of appeal (a copy of which has been tendered by the first respondent) raised 13 grounds that were described by Downes J as generalised and lacking in substance (see SZHQC at [7]).  His Honour went on to explain the absence of basis for any of the grounds and pointed out that the reality was that the appellant had lost his case in the Refugee Review Tribunal on the facts, on the basis of the Tribunal findings that the applicant was not a truthful or credible witness.  While the basis for his claim was that he feared persecution by relatives of his Hindu wife, the Tribunal found his evidence as to how the marriage was arranged and performed to be evasive and generalised and highly implausible.  Hence it followed that the Tribunal did not accept that he feared persecution in consequence of what it held to be a fabricated marriage.  Downes J observed (at [8]) that his reading of the decision of the Tribunal did not reveal any potential error of law not raised by the appellant.  His Honour noted that that the applicant had not filed written submissions and had declined to put any oral submissions in support of his appeal.

7. The applicant then filed an application for special leave to appeal to the High Court of Australia.  That application was unsuccessful, being dismissed by Kirby and Heydon JJ on 6 December 2007 (see SZHQC v Minister for Immigration & Citizenship & Anor [2007] HCATrans 735). Heydon J stated that the documents filed by the applicant in support of his application for special leave to appeal were formulaic and were not directed to the reasoning of the Court below, that an appeal would have no prospects of success and that the application should be dismissed.

8. Thereafter the applicant commenced the proceedings in this Court on 26 August 2008 in relation to the Tribunal decision that had been the subject of the prior proceedings.

9. The first ground in the present application is that the Tribunal failed to consider an integer of the applicant's claim in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution in India) was at risk of harm from radical Hindus and not able to access effective protection.  The second is that the Tribunal failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant's claims are plausible, which was said to be the case in this instance.

10. It is apparent that the first ground, although not expressed in identical terms, was in effect raised and considered in the prior proceedings (see SZHQC per Turner FM at [21] – [24]).  In addition Downes J found no basis for any potential jurisdictional error.  In particular, in the original proceedings in this Court, the applicant had raised in his amended application a claim that the Tribunal had failed to see that he had a fear because of religion which was Convention based.  On appeal one of the grounds was that the matter had not been considered properly and therefore that the applicant had been denied procedural fairness.  In any event, it is apparent that the Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of his religion in light of country information. 

11. The second ground is similarly akin to grounds previously raised unsuccessfully.  Ground four of the amended application in the first proceedings in this Court suggested that the benefit of the doubt should be given to the applicant.  Ground E in the grounds of appeal was that as the Tribunal had some doubts, the benefit of the doubt should have been given to the applicant.  However as Downes J pointed out there is no basis for such an assertion.  There is nothing in the material before me to indicate that the applicant has any reasonable prospect of succeeding on either of these bases.  

12. In an accompanying affidavit filed on 26 August 2008, the applicant contended that the Tribunal decision fell within in the application of the High Court decision in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 that was said to have made a “new ruling” about s.424A of the Migration Act1958. The applicant claimed that he would like to raise this new line of argument on the basis that at the time his matter was last before the Court the decision of SAAP was not in force and therefore he ought to be allowed to raise that ground consistent with principles of natural justice.

13. The applicant made no oral submissions other than to state that he could not go home because of circumstances in his home country.  He did not address the fact that the High Court decision in SAAP was made on 18 May 2005, prior to the first application that he filed in this Court seeking review of the Tribunal decision and, indeed, prior to the Tribunal decision in issue.  He could have raised any SAAP issue in prior proceedings. 

14. In any event, the applicant had the opportunity and did in fact raise (albeit in general terms) what might be seen as the issue of the application of s.424A in the prior proceedings. Downes J indicated at [17] that a claim that the Tribunal wrongly relied on third-party sources was unfounded and that it could refer to country information and was entitled to do so even without disclosure. This appears to be a reference to the exception to s.424A in sub-s.(3) in relation to the independent country information cited by the Tribunal in its reasons for decision. Such material was relevant to the Tribunal decision in that the Tribunal had, contrary to the contention in the present proceedings, considered the situation if the applicant returned to India as a Muslim in light of the past communal conflict between Hindus and Muslims in various parts of India. It referred to country information in relation to the situation in India, accepting that the state the applicant came from was a progressive state with a large Muslim population, that the state government and community had exhibited tolerance for minority religions, that community harmony was widespread and also that there were a number of national and state institutions providing significant safeguards for minority members of the community.

15. The applicant has not explained how, notwithstanding s.424A(3), such reliance on country information is within s.424A(1) let alone the relevance of SAAP to the decision and why such matters could not have been raised in the prior proceedings, given the timing of the decision and the application in question. There is nothing in the material before the Court to indicate that s.424A was otherwise enlivened in this instance.

16. As indicated, this matter has been the subject of prior proceedings in this Court, the Federal Court and the High Court.  The grounds raised by the applicant on those occasions did not succeed.  Nothing in the application or said by the applicant in these proceedings suggests that there is any other ground that is any way arguable.

17. The applicant's claim that he does not want to go home because of circumstances in his home country does not establish jurisdictional error on the part of the Tribunal on the basis on the material before it at the time of its decision.

18. I am satisfied that this application is in effect an attempt to reagitate the same issues that have been dealt with in past judicial review proceedings. In light of my discussion of the grounds relied on and the findings in the prior judicial review proceedings, as submitted by the first respondent, the application should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules on the basis that the applicant has no reasonable prospect of successfully prosecuting these proceedings (see Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720, White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 and SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268x).

19. The present proceedings have previously been considered and have been unsuccessful (S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240). To the extent that any different argument is now sought to be raised, it is one that should have been put, if it was to be put, in the prior proceedings. Having regard to the nature of the applicant's litigation history and the absence of any explanation (other than the applicant's wish not to return home) and having regard to the absence of any submissions addressing the substance of these proceedings, I consider that it is open to the Court in all the circumstances to draw an inference that the applicant has filed the present generally expressed application for the collateral purpose of extending the period of his stay in Australia (see NALE v Minister for Immigration [2003] FMCA 366 at [12]) and that the proceedings are an abuse of process.

20. I have had regard to the principle that the repeated bringing of similar applications for judicial review in relation to the same Tribunal decision brings the administration of justice into disrepute and to the underlying public interest in the finality of litigation (as to which see Walton v Gardiner (1993) 177 CLR 378 at 393). These proceedings should be summarily dismissed to avoid further public expense in defending a matter which has already occupied the time and resources of this Court, the Federal Court and the High Court.

21. The first respondent also relies on res judicata, issue estoppel and Anshun estoppel arguments.  Without going into the detail necessary to consider arguments of res judicata and issue estoppel, I am, at the least, satisfied that the proceedings are barred by the operation of the doctrine of Anshun estoppel.  The matters put forward in the current proceedings, including the argument based on SAAP, could have been put forward in the prior proceedings (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589). Anshun estoppel prevents a party from raising in fresh proceedings matters that properly belong to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 and Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 205 ALR 198). This is such a case. The applicant has not established and nor is it apparent that there are any special circumstances that would justify the Court exercising its discretion not to apply Anshun estoppel principles. In these circumstances I consider it appropriate to dismiss the application pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

22. I note for the sake of completeness that the first respondent also contended that these proceedings were frivolous or vexatious.  This is not a conclusion that I draw readily and it is not necessary for the purposes of the present proceedings to make such a finding (see Attorney-General v Wentworth (1988) 14 NSWLR 481).

23. The first respondent also seeks an order for indemnity costs as explained in the outline of submissions, based on the applicant's litigation history and the unmeritorious nature of this application.  I consider in light of the principles in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 (at 232 – 234) that it is appropriate to make an order on this basis.

24. While not addressed in oral submissions, in written submissions the first respondent also sought an order that no further application by the applicant to review the decision of the delegate or the Tribunal in this instance be accepted for filing except with leave of the Court.  I note that concern has been expressed on occasion about the efficacy of such orders (see in particular the concerns expressed by Moore J in SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [24]). I assume on the basis of the submissions before me that this is an application that seeks to rely on the power of the Court under Rule 13.11 of the Federal Magistrates Court Rules. However, Rule 13.11(3) refers to a person who habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person. In this instance there has been one prior judicial review application to this Court and on appeal to the Federal Court and the High Court. This is the second time that the applicant has instituted proceedings in this Court against the respondents. I am not satisfied that the fact that the applicant pursued his prior judicial proceedings through the available avenues for appeal to the Federal Court and the High Court and then commenced these proceedings is such as to be characterised as habitually and persistently instituting vexatious proceedings within Rule13.11(3) or that Rule 13.11(1) is applicable. I am not persuaded on the material before me that it is appropriate to make the orders sought in the particular circumstances of this case. I note for the benefit of the applicant that it might well be otherwise were he to seek to initiate further proceedings in this Court in relation to the same Tribunal decision.

25. Accordingly the application that the applicant filed in this Court on 26 August 2008 should be dismissed. 

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

Associate: 

Date:  1 December 2008