SZHTL v Minister for Immigration

[2007] FMCA 1577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTL & ORS v MINISTER FOR IMMIGRATION
& ANOR [2007] FMCA 1577

MIGRATION – Anshun estoppel – prevents a party from re-litigating a matter determined in earlier proceedings involving the same parties and subject matter – applicant estopped from conducting the proceeding.

Migration Act 1958 (Cth), s.477
Federal Magistrates Court Rules 2001, r.13.10

SZHTL & Ors v Minister for Immigration & Anor [2006] FMCA 340
SZHTL & Ors v Minister for Immigration and Multicultural Affairs [2006] FCA 1052
SZHTL & Ors v Minister for Immigration and Multicultural Affairs & Anor [2007] HCATrans 217
Port of Melbourne Authority v Anshun P/L(No. 2) (1981) 147 CLR 589
Henderson v Henderson (1843) 67 ER 313
Blair v Curran (1939) 62 CLR 464
Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105

First Applicant: SZHTL

Second Applicant: SZHTM

Third Applicant: SZHTN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1831 of 2007

Judgment of: Turner FM

Hearing date: 17 August 2007

Date of last submission: 17 August 2007

Delivered at: Sydney

Delivered on: 17 August 2007

REPRESENTATION

The Applicant appeared in person via telephone link

Solicitors for the Respondents: Mr J. Dooley of Sparke Helmore

ORDERS

1. The applicants are estopped from conducting the proceedings; the application is dismissed.

2. The first and second applicants are to pay the costs of the first respondent fixed in the amount of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1831 of 2007

SZHTL

First Applicant

SZHTM

Second Applicant

SZHTN

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 12 June 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 October 2005 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants protection visas.

2. The applicants arrived in Australia on 26 March 2004 and lodged protection visa applications with the Department of Immigration and Multicultural and Indigenous Affairs on 23 April 2004. Only the first named applicant (hereinafter “the applicant”) put forward specific claims under the Refugees Convention; her husband and child were included in the application as members of the family unit.

3. This application was refused by a delegate of the first respondent on 14 April 2005. On 16 May 2005 the applicants filed an application for review with the Refugee Review Tribunal, and on 21 October 2005, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicants protection visas.

4. The details of the applicant’s proceedings (extracted from the first respondent’s written submission) are as follows:

DIMA
Application for protection visas lodged	23 April 2004
Delegate’s decision refusing visas	14 April 2005
RRT
Application for review lodged	16 May 2005
RRT hearing	19 October 2005
RRT decision affirming decision of the delegate	9 November 2005
FEDERAL MAGISTRATES COURT – SYG 3581 of 2005
Application for judicial review lodged	7 December 2005
Orders and judgement of Scarlett FM dismissing application: SZHTL & Ors v Minister for Immigration & Anor [2006] FMCA 340	1 March 2006
FEDERAL COURT – NSD 565 of 2005
Notice of appeal lodged	20 March 2006
Orders and judgement of Cowdroy J dismissing appeal: SZHTL & Ors v Minister for Immigration and Multicultural Affairs [2006] FCA 1052	14 August 2006
HIGH COURT – S313 of 2006
Application for special leave to appeal lodged	5 September 2006
Orders of Kirby and Callinan JJ dismissing application: SZHTL & Ors v Minister for Immigration and Multicultural Affairs & Anor [2007] HCATrans 217	22 May 2007
FEDERAL MAGISTRATES COURT – SYG1831 of 2007
Application for judicial review lodged	12 June 2007

1. In his response, the first respondent submits that the applicant is estopped from bringing the current proceedings “on the basis of res judicata and issue estoppel”. The first respondent submits that the doctrine of “Anshun estoppel” applies. “Res judicata” (also known as “Anshun estoppel”:  Port of Melbourne Authority v Anshun P/L(No. 2) (1981) 147 CLR 589; see lecture by Michelle Taylor – Sands 14/09/04) prevents a party from re-litigating in a subsequent proceeding a cause of action or defence raised or determined in earlier proceedings involving the same subject matter and the same parties, and not only applies to causes of action actually determined by the earlier proceedings, but to causes of action that should have been but were not raised and therefore not determined by the earlier proceeding: Henderson v Henderson (1843) 67 ER 313 at 319 per Wigram VC.

2. “Issue estoppel” prevents a part re-litigating in subsequent proceedings an issue of fact or law determined in an earlier proceeding that involved the same parties but a different subject matter.  The distinction drawn between res judicata and issue estoppel was stated by Dixon J (as he then was) in Blair v Curran (1939) 62 CLR 464 at 532 as follows:

   …in the first the very right or case of action claimed or put in suit has in the former proceedings passed into judgement, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.

3. The first respondent seeks an order pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (“the Rules”) that the proceeding be dismissed because the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

4. The first respondent seeks also an order under Rule 13.10(b) of the Rules that the proceeding be dismissed because it is vexatious or frivolous.

5. The first respondent seeks also an order under Rule 13.10(c) of the Rules that the proceeding be dismissed because it is an abuse of the process of the Court.

6. The written response of the first respondent was filed on 19 June 2007 and sought also to have the matter dismissed because of the requirement in s.477(a) of the Migration Act1958 (Cth) (“the Act”) that an application to the Court for judicial review of a decision of the Tribunal be made to the Court within 28 days of actual notification to the applicant of the decision of the Tribunal. That application to dismiss has been withdrawn before the Court in light of the decision in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105, handed down on 12 July 2007.

Anshun Estoppel

1. The Court finds that the application to it in this matter is seeking to re-litigate a case of action raised and determined by earlier proceedings involving the same subject matter and parties. This subject matter is the decision of the delegate refusing a protection visa. Those earlier proceedings are:

   (i)The application to the Refugee Review Tribunal to review the decision of the delegate, as determined by the decision of the Tribunal of 9 November 2005;

   (ii)The application to this Court for judicial review (SYG 3581 of 2005), dismissed by Scarlett FM on 1 March 2006;

   (iii)The appeal in the Federal Court of Australia (NSD 565 of 2005) against the decision of Scarlett FM, the appeal being dismissed by decision dated 14 August 2006;

   (iv)The application to the High Court of Australia (S313 of 2006) for special leave to appeal, which was dismissed on 22 May 2007.

2. The Court orders that the applicant is estopped from conducting the proceedings.

3. The Court makes no finding on the first respondent’s application that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim because of its decision on Anshun Estoppel.

4. The Court makes no finding on the application to dismiss for being frivolous or vexatious because of its decision on Anshun Estoppel.

5. The Court makes no finding on the claim of abuse of process because of its finding on Anshun Estoppel.

Conclusion

1. As the applicant is estopped from conducting this proceeding, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang

Date: 17 September 2007