FEDERAL COURT OF AUSTRALIA

SZBIC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 255

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZBIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2295 OF 2003

MOORE J

18 MARCH 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal is dismissed as incompetent.

2.      The application for an extension of time in which leave to appeal ought to be sought is dismissed.

3.      The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     This is a purported appeal from a judgment of a Federal Magistrate of 19 November 2003 dismissing an application for judicial review (said in the originating process filed in the Federal Magistrates Court to be made under s 39B of the Judiciary Act 1903 (Cth)) of a decision of the Refugee Review Tribunal (“the Tribunal”).  On 31 May 2000 a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant the appellant a Protection Visa (866).  This decision was affirmed by the Tribunal on 31 October 2002.  The Minister objects to the competency of the appeal on the grounds that the appellant was required to seek leave to appeal and has not.  This objection is based on the contention that the judgment of the Federal Magistrate of 19 November 2003 was an interlocutory judgment.

2                     On 13 December 2002 the appellant instituted proceedings in the High Court of Australia seeking constitutional writs and an injunction in relation to the decision of the Tribunal.  The High Court remitted the matter the Federal Court.  On 22 August 2003 Selway J dismissed the application because the appellant had not complied with orders his Honour had made. 

Background Facts

3                     The following emerges from the reasons of the Tribunal.  The appellant is a Punjabi Muslim and a citizen of Pakistan.  He arrived in Australia on 21 April 2000 travelling on a valid passport in his own name.  The appellant travelled first to the United Arab Emirates on 18 September 1999 and from there to Australia on 20 April 2000. 

4                     The appellant's claims in relation to his political affiliations and fear of persecution are conveniently set out by the Tribunal:

He stated that he came from a family which supported the Pakistan People’s Party (PPP).   In 1984 he himself became an “advocate” for people who were “suffering from the hands of the Feudal Lords”.  He later became an “activist in the social party” and “stood side by side with PPP”.  He also became a “leader” or “active member” of the Small Industries Labor Union, and all the trade unions supported the PPP.  However the PPP government was dissolved by Pakistan’s President, Gulam Ishaq.  Nawaz Sharif became the Prime Minister [Sharif was Prime Minister from 1991 to 1993, and again from 1997 to October 1999]…

It was claimed that [the appellant] was “arrested five times during the regime of Zia ul Haq”, on the first occasion when he was a teenager [General Zia died in 1988].  On that occasion he was held for two days in the police station.  On the other four occasions on allegations that he was creating civil unrest.  He was also arrested four times during the regime of Nawaz Sharif.  He did not state during which period.  He had “subjective fear of death” so went to UAE and from there he arranged for the visa to come to Australia.

5                     The essence of the appellant’s claims is that he suffered persecution on the basis of his political opinion and that because of his “long battle” against the Feudal landlords he will be exposed to persecution should he return to Pakistan.

The Tribunal's Decision

6                     The Tribunal's decision was made "on the papers" as the appellant had informed the Tribunal that he did not wish to give oral evidence despite the Tribunal having earlier advised him that it was unable to make a favourable decision solely on the information before it. The basis on which the Tribunal affirmed the decision of the delegate was largely that the appellant had “not provided sufficient details about his claims to enable the Tribunal to establish the relevant facts” so as to establish that his circumstances were different from that which generally emerged from the independent country information.  The Tribunal said:

[The appellant] did not state in what years he was arrested, nor submit any evidence of his membership of the PPP or of his involvement in any political activities at any time.  Even if he was arrested during the most recent period in which Nawaz Sharif was Prime Minister, he has not explained why he continues to fear arrest, given that Prime Minister Nawaz Sharif was overthrown shortly after [the appellant] left Pakistan in 1999.

7                     The Tribunal then pointed to indicators which suggested that the appellant did not have a well founded fear of persecution.  These were the ease with which the appellant obtained and travelled on a valid passport in his own name and the independent country information which indicated that ordinary supporters of political parties, including the PPP, were able to express their political views freely in Pakistan.  This led the Tribunal to conclude that the appellant did not have a well founded fear of persecution within the meaning of the Convention.

Procedural History

8                     In the proceedings commenced in the High Court on 13 December 2002, the appellant sought writs of prohibition, certiorari and mandamus, as well as an injunction on the grounds that there had been a breach of the rules of natural justice, that the decision of the Tribunal involved an error of law, that the procedures required by law to be observed were not observed, that the Tribunal's decision was an improper exercise of power conferred upon it, that there was no evidence or other material to justify the making of the decision and that the decision was otherwise contrary to law.  As noted earlier, the matter arising from that application, was remitted to the Federal Court which resulted in Selway J dismissing the application for non compliance with procedural orders. This occurred before any final hearing of the application for constitutional writs.

9                     In the application filed on 26 August 2003 in Federal Magistrates Court, the appellant made the bare assertion that there had been a lack of procedural fairness, a denial of natural justice and an error of law. By a motion filed on 6 November 2003, the Minister sought the summary dismissal of the application either because it failed to disclose a reasonable cause of action or was an abuse of process.  Allegations of res judicata, Anshun estoppel and issue estoppel were raised by the Minister in support of the application for summary dismissal.

10                  In neither proceeding were the grounds of review ever particularised.

Federal Magistrates Decision

11                  The Federal Magistrate first considered whether the principle of res judicata applied in these circumstances or whether an estoppel arose.  His Honour referred to the decision of Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 (at [33]):

I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s 75(v) of the Constitution.  The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45].  In determining that question the Court should focus on the substance of the two proceedings, rather than their form.  As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding.

12                  The Federal Magistrate then set out another passage in Thayananthan in which Merkel J referred to Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 (at [69]) and noted that issue estoppel occurred where a party was precluded from contending the contrary of any precise point which had once been distinctly put in issue and had been determined between the parties and, unlike res judicata,issue estoppel may arise when the cause of action in each proceeding is entirely different.  The Federal Magistrate also referred to what Merkel J said about Anshun estoppel, namely that it arose when an applicant puts forward in later proceeding matters which might have been put in the earlier proceeding.

13                  The Federal Magistrate then compared the proceedings instituted in the High Court and remitted to the Federal Court and the proceeding instituted in the Federal Magistrates Court.  His Honour found (at [12] and [13]):

There is no relevant distinction to be drawn between a proceeding instituted under s 75(v) of the Constitution to review a decision of the RRT and a judicial review proceeding instituted either in this Court or the Federal Court under the Migration Act 1958 (Cth) or the Judiciary Act 1903 (Cth) to review the same decision.  Provided that the applicable law is the same, the cause of action is the same… I find that the two causes of action are the same and accordingly res judicata applies.

14                  The Federal Magistrate then proceeded to consider the position on the assumption that he was wrong about res judicata.  His Honour concluded that issue estoppel arose.  His Honour acknowledged that that there had been no adjudication of the applicant’s claims in either the High Court or the Federal Court, and conceded he may be wrong on the questions of res judicata and issue estoppel. The Federal Magistrate went on to indicate that if that be the case, the principle of Anshun estoppel was applicable.  To cover all exigencies, his Honour indicated that if he were wrong on the issues of res judicata, issue estoppel and Anshun estoppel, he would still dismiss the application as an abuse of process.  His Honour said (at [18]):

It would be unfair to the Minister and would bring the administration of justice into disrepute to permit the applicant to see his application in the Federal Court dismissed for default, to leave that decision untested on appeal, and then to institute an effectively identical proceeding in this Court, which suffers from the same vice of lack of particularity as the application in the Federal Court: Walton v Gardiner (1992-93) 177 CLR 378 at 393.

Amended Notice of Appeal

15                  The purported notice of appeal first filed in this Court, was filed on 9 December 2003.  An amended notice of appeal was filed on 20 February 2004.  In the amended notice of appeal the appellant alleged that the Federal Magistrate failed to recognise that the Tribunal had fallen into jurisdictional error in failing to provide procedural fairness to the appellant.  In particular, that the Tribunal had made no findings as to what "socio-political changes might occur in Pakistan in the reasonably foreseeable future" and whether the appellant’s fears in that respect were well founded.  Also, that the Federal Magistrate had erred in finding that the Tribunal had not fallen into jurisdictional error in assessing whether adequate protection would be offered by the state should the appellant have returned.

16                  The appellant further alleged in the notice of appeal that he was not provided with information on which the Tribunal relied, namely information about whether violence against the PPP supporters and leaders had subsided. Also, an allegation was made that the Tribunal did not put to the appellant "its doubts about documents containing information personal to the applicant from different sources of Pakistan, and those doubts formed part of the reason for the Tribunal’s decision" and that this conduct amounted to constructive failure to exercise jurisdiction.

17                  In his appeal, the appellant seeks to have the Tribunal decision set aside, the Minister restrained from giving effect to the Tribunal decision and the matter remitted to the Tribunal to be determined according to law.

Objection to competency

18                  The respondent objects to the jurisdiction of this Court to hear the appeal on the grounds that:

1.      The orders and judgment of Federal Magistrate Driver dated 19 November 2003 are interlocutory and the applicant has not been granted leave to appeal against the orders and judgment pursuant to section 24(1A) of the Federal Court of Australia Act 1976.

2.      The applicant has failed to file and serve a notice of motion seeking leave to appeal from the interlocutory orders and judgment of Federal Magistrate Driver dated 19 November 2003 within seven (7) days from the pronouncement of the orders and judgment in accordance with Order 52, Rule 10(2)(b) of the Federal Court Rules.

I now turn to consider the issues raised in the purported appeal and the objection to competency.

Disposition of application/appeal

19                  The Minister is correct in submitting that the judgment of the Federal Magistrate was interlocutory and leave to appeal is required.  However, if the appellant was ultimately seeking to raise a point of substance concerning the approach adopted by the Tribunal, I would both extend time to apply for leave and grant leave: see WAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 757.

20                  In my opinion, the Federal Magistrate was almost certainly wrong in concluding that, in the present circumstances, the appellant was precluded from prosecuting his application in the Federal Magistrates Court on the footing that any of res judicata, issue estoppel or Anshun estoppel arose.  The Federal Magistrate was also probably wrong if he viewed the application of the appellant as an abuse of process simply because the appellant commenced in the Federal Magistrates Court, proceedings of substantially the same character as those commenced in the High Court and remitted to this Court and summarily dismissed by this Court (because the appellant had not complied with procedural directions and orders).

21                  However, on a fair reading of the Federal Magistrate's reasons for judgment, his Honour almost certainly viewed the application before him as an abuse of process because it suffered from the same vice as the application which had been dismissed in this Court by Selway J.  That is, it was an application for constitutional writs devoid of particulars disclosing any substantial basis for the prosecution of the application.  It was open to the Federal Magistrate to form this view and dismiss the application on the ground that it was an abuse of process.  While his Honour may have taken a different view given that the appellant was then unrepresented, he was not precluded from adopting the approach he did.

22                  I have read the decision of the Tribunal.  It appears, on its face, to be an unexceptionable consideration of the circumstances of the appellant having regard to his claims and the position in Pakistan as understood by the Tribunal, particularly bearing in mind that the appellant elected not to appear before the Tribunal.

23                  I dismiss the appeal as incompetent.  To the extent that what was said by the appellant at the hearing might be viewed as an application for an extension of time in which to apply for leave to appeal, I refuse to extend time.  I order that the appellant pay the Minister's costs of the proceedings.

Associate:

Dated:              18 March 2004