FEDERAL COURT OF AUSTRALIA

SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 404

MIGRATION – Application for judicial review of a Refugee Review Tribunal decision in this Court dismissed – appeal to Full Court dismissed – special leave to appeal to High Court refused – appellant thereupon filed another originating application in the Federal Magistrates Court for review of the Tribunal’s decision – application dismissed as an abuse of process – appellant barred by doctrine of res judicata – no reasonable cause of action disclosed – purported appeal to this Court from Federal Magistrates Court – appellant claimed throughout history of proceedings that Tribunal’s decision not made lawfully – application that appeal be dismissed as incompetent – appeal out of time – leave to appeal required – whether reasonable basis for appeal disclosed – whether appeal constitutes an abuse of process – whether appellant barred by the doctrine of res judicata and/or is estoppel by issue estoppel or Anshun estoppel – purported appeal incompetent – abuse of process – proceedings barred by the doctrine of res judicata or Anshun estoppel.

Migration Act 1958 (Cth), ss 36(2), 474

Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, referred

R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598, referred

Muin v Refugee Review Tribunal [2002] HCA 30, referred

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 69 ALD 1, referred

Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722, referred and discussed

Somanader v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677, referred

R v Secretary of State for the Environment; Ex parte Hackney [London Borough Council [1983] 1 WLR 524, referred

Taylor v Ansett (1987) 18 FCR 342, referred

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, referred

Stuart v Sanderson (2000) 175 ALR 681, referred

Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45, referred

Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996)

Campbell, ‘Relitigation in Government Cases:  A Study of the Use of Estoppel Principles in Public Law Litigation’ (1994) 20 Mon U L Rev 21

SZBJM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N2556 of 2003

MADGWICK J

5 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.       The purported appeal is incompetent, leave to appeal not having been obtained.

2.       An extension of time to file a notice of appeal is refused.

3.             Alternatively, the proceedings are an abuse of process and should be dismissed as such. 

4.             Alternatively, the proceedings are barred as res judicata or by virtue of the doctrine of Anshun estoppel.

5.             The appellant is to pay the respondent's costs assessed in the sum of $2,500.

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

REASONS FOR JUDGMENT

HIS HONOUR:

1                     In this matter, the respondent Minister moves the Court for orders that the principal proceedings, a purported appeal from a decision of the Federal Magistrates Court given by Raphael FM, be dismissed as incompetent or, in the alternative, be dismissed on the grounds that no reasonable basis for the appeal is disclosed, or that the appeal constitutes an abuse of process since, it is said, the appellant is barred by the doctrine of res judicata and/or is estopped from bringing these proceedings either by issue estoppel or by Anshun estoppel.

2                     The appellant, who, on his own account, is by no means indigent has chosen to be legally unrepresented.

3                     On 6 November 2001, the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.  On 28 December 2001, the appellant filed an application in this Court for an order of review of that decision.

4                     The application originally brought to the Court alleged that the Tribunal Member had failed [to] exercise his power to grant a protection visa under s 36(2) of the Migration Act 1958 (Cth) (‘the Act’), as well as other matters.  The application was amended, but the terms of the amended application are not before me.  However, Emmett J, who heard the matter at first instance ([2002] FCA 361), said on 20 March 2000 at [4]:

‘The applicant, in the only ground of the amended application maintained, contends that the failure by the Tribunal to consider fully the independent evidence in relation to the protection available to the applicant from the authorities should he return to Bangladesh indicates that the Tribunal adopted a closed mind to the independent evidence, such that the decision is affected by actual bias.  For the purposes of dealing with this contention, I will assume that a decision affected by actual bias could not be characterised as a bona fide attempt to exercise power in making the decision.’

5                     It is clear that his Honour was deciding the matter before the decision in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 (‘S157’).  The reference to bona fides followed mention by his Honour of R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 at 615.  His Honour dismissed the application.  In those proceedings, the applicant was legally represented. 

6                     The appellant appealed from his Honour’s judgment and the appeal was heard by a Full Court on 18 September 2002 – see [2002] FCAFC 293.  The amended Notice of Appeal, when again the appellant was legally represented, included the following:

‘The Tribunal failed to comply with the overriding duty to accord procedural fairness to the applicant, with the result that the decision was beyond the jurisdiction of the Tribunal to make.’

The particulars of his claim indicated that relevant documents forwarded by the Minister’s department to the Tribunal had not been read by the Tribunal Member, but the Tribunal had misled the applicant into thinking that they had been read, so that the case was on all fours with Muin v Refugee Review Tribunal [2002] HCA 30 (‘Muin’).

7                     Muin had been decided after Emmett J gave his decision and the hearing of the appeal was adjourned to enable the appellant’s legal advisers to consider the effect of NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 69 ALD 1 and other cases as to the operation of s 474 of the Act, once leave to raise the Muin point had been granted.  It appears that what I will call the Muin point was urged before the Full Court at the hearing.  The Court distinguished the factual situation in Muin and dismissed the appeal. 

8                     The appellant thereupon sought special leave to appeal to the High Court from the judgment of the Full Court.  His grounds included an assertion:

‘… that the Tribunal made “error of law” and “jurisdictional error” and procedural fairness at the time of deciding the matter.’

And that:

‘The RRT decision was affected by an “error of law” and “jurisdictional error” and lack of procedural fairness.’

9                     This matter was heard in the High Court on 8 August 2003 by which time the High Court had decided S157.  Hayne J delivering the judgment of the Court constituted by himself and Callinan J said:

‘The Applicant’s case, including the factual matters which he sought to rely on before the Refugee Review Tribunal, were carefully considered by the Full Court of the Federal Court.  No error has been demonstrated in their approach to or conclusions with respect to those matters.  Accordingly, any appeal to this court would have no prospect of succeeding.  To the extent to which the applicant seeks to invoke this Court’s original jurisdiction under section 75 of the Constitution, as appears to be the case from page 48 of the application book, no arguable ground for the exercise of that jurisdiction is made out.  It is therefore unnecessary to consider any of the procedural difficulties which such an application might present.’

10                  Not content with this, on 1 September 2003 the appellant filed another originating application in the Federal Magistrates Court for review of the Tribunal’s decision.  In his application the appellant said:

‘I lodged my review with the Federal Court but because of the privative clause ... I want to lodge this application following Plaintiff S157/2002 give me the right to lodge this application.’

11                  He set out as his grounds:

‘1.     My case is identical with the Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal.

2.      [The] RRT’s decision was affected by lack of procedural fairness and denial of natural justice ...

3.            I would like to request the honourable court to accept my application in the test case of this court.

4.            Plaintiff S157/2002 v Commonwealth of Australia gave me the right to lodge this application.’

12                  The learned Federal Magistrate referred to the decision of the Full Court given on 18 September 2002 and said:

‘I am satisfied that this is as clear a case of res judicata as has come before me.  There is not only nothing which the applicant wishes to argue that he could not have argued before either the Full Bench or the High Court, there is, it would appear, nothing that he has not argued.  By seeking to bring a repeat of his original application in this Court the applicant is to my mind bringing a proceeding or claim for relief which is an abuse of the process of the Court.  Because of the res judicata situation no reasonable cause of action is disclosed in relation to the claim for relief and I am therefore able to dismiss the application pursuant to [a specified rule].’

13                  It is from that judgment that the appellant now wishes to appeal.  The Minister submits that the purported appeal is incompetent because the judgment of the learned Federal Magistrate was interlocutory, that leave to appeal is therefore required but has not been obtained, and that the appellant is a considerable period out of time for seeking such leave. 

14                  If I thought that there were any possible substance in the attempt to appeal, and even if I agreed with the Minister’s other submissions as to why the appeal should be in any case dismissed, I would have investigated the merits of leave to appeal and of the appellant being relieved from his delay.  I say that because it may be that the law as to res judicata and estoppels in relation to earlier judicial proceedings concerning administrative actions by public bodies is capable of further development in a way that could possibly assist the appellant. 

15                  In Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722, Lindgren J considered such matters at some length, following and discussing an earlier judgment of Merkel J in Somanader v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677 (‘Somanader’) at [40] ff.  In R v Secretary of State for the Environment; Ex parte Hackney [London Borough Council [1983] 1 WLR 524, the English Court of Appeal held that estoppel principles did not apply in judicial review proceedings.  The majority of the Full Court of this Court in Taylor v Ansett (1987) 18 FCR 342 thought differently.  The learned authors of Spencer Bower, Turner and Handley’s The Doctrine of Res Judicata (3rd ed, 1996) say:

‘Res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata estoppels.’

Moreover, Professor Campbell, in her article ‘Relitigation in Government Cases:  A Study of the Use of Estoppel Principles in Public Law Litigation’ (1994) 20 Mon U L Rev 21, concludes that:

‘[no] convincing reasons ... have been given for exempting judicial review proceedings, or public law litigation generally, from the operation of estoppel principles’.

16                  However, Professor Campbell has suggested that some modifications should be imposed on the application of such principles in public law litigation. 

17                  Lindgren J expressed the view in Wong that:

‘I find persuasive Professor Campbell’s criticisms of the grounds on which Hackney [LBC] was distinguished in Taylor v Ansett [(1987) 18 FCR 342].’

Lindgren J however pointed out that:

‘... a difficulty in [Prof Campbell’s] suggestion is that it seems to make the application of estoppel principles discretionary, like Anshun estoppel, yet their non-discretionary nature is well-established as distinguishing them from Anshun estoppel.’

His Honour considered that that proposition was supported by passages in the judgments in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, to which his Honour referred. 

18                  For myself, and although, of course, I have not had the benefit of full argument on the matter, it seems to me that the commonsense and robust position stated in Spencer Bower deserves approbation.  Professor Campbell wrote her article in 1994 before the flood of legally meritless applications for judicial review in migration cases (among which, of course, are some cases of very real or very arguable merit) which presently afflicts this Court and the Federal Magistrates Court.  Her confidence about the armoury of the courts to deal effectively with meritless claims has perhaps been revealed by such circumstances to have been somewhat misplaced.  In any case, I see no cogent reason why res judicata, issue estoppel (where it can otherwise be established) and Anshun estoppel should not apply in administrative proceedings.  In Stuart v Sanderson (2000) 175 ALR 681 experienced counsel did not suggest the contrary, and I saw no reason not to proceed accordingly.

19                  In Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45, I expressed my respectful agreement with Merkel J’s judgment in Somanader and I indicated a view, again regrettably without having heard full argument on the point, that res judicata would defeat an applicant from having multiple bites at the cherry of judicial review of Refugee Review Tribunal decisions. 

Res judicata

20                  The basis upon which judicial review of such decisions might be had has altered more than once in recent years and, as is common in many fields of law, there have been significant developments in relevant judge made law.  It has now been revealed in S157 that nothing in the Act, including s 474, is effective to immunise Refugee Review Tribunal decisions from judicial review for jurisdictional error.  (One may infer that, with all the breadth and quality of legal advice available to the federal executive government, no safe statutory means has been discovered since S157 whereby judicial review for jurisdictional error might be ousted.)  Notwithstanding that the interpretation given to s 474 in S157 was pronounced in 2003, in law such was always the correct way of understanding that section and the Act as a whole.

21                  During the appellant’s time in Australia, there have been some statutory changes as to the bases upon which he might seek or not seek judicial review.  Nevertheless, his claim always has been that, in a variety of ways expressed from time to time, the Tribunal’s decision should be quashed and his application for a protection visa remitted to the Tribunal for redetermination de novo.  Whether such claims were originally framed as justified because of jurisdictional error or not, and whether he needed to frame them as such or not to obtain relief from this Court or the Magistrates Court, the applicant relied upon the facts of (a) the Tribunal’s decision; (b) that the Tribunal gave its decision for the reasons it did, and (c) the passage or otherwise of certain documents from the respondent’s department to the Tribunal.  The applicant claimed that the legal effect of those facts was that the Tribunal’s decision had not been lawfully made and that the Tribunal should be made to redo its work.  In my opinion, the rejection of that claim, as variously put in the Federal Court and in the High Court, means that such claim has merged into final and conclusive judgments and is not open for re-litigation.  The way a claim is argued, or even expressed in terms of the actual relief claimed, does not affect the substance of the claim: that arises out of the asserted facts and their asserted legal effect.

22                  I therefore agree, for the reasons given above, that this is a case of res judicata and that, as such, the proceedings cannot be maintained. 

23                  However, there are other bases upon which this decision may rest.  I need not consider the question of issue estoppel. 

24                  It is evident that the Full Court of this Court allowed the appellant latitude to raise any legal argument he liked as to whether he should be able to have the Tribunal’s decision set aside and reconsidered.  He chose, on advice, to nail his colours to the Muin mast. 

25                  In his present purported Notice of Appeal to the Court from the decision of the Magistrate filed on 30 December 2003, the applicant again emphasises Muin’s case but continues:

‘f.   The RRT did not complete the exercise of its jurisdiction as it made no findings as to what socio-political and ethnic changes might occur in Bangladesh in the reasonably foreseeable future and thus failed to assess whether the applicant’s fears of being persecuted...were well founded in the reasonably foreseeable future.

g.         The RRT’s decision was not based upon circumstances giving a rational foundation for the belief entertained as the RRT’s findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.

h.         The Tribunal did not provide the applicant with particulars of information, which formed part of the reason of the Tribunal’s decision, namely, that violence against [a political party to which the appellant had belonged] had subsided, and that information was not “just information about a class of persons”.

i.     [A similar point to that adumbrated in (h) is set out].’

26                  The Notice of Appeal goes on to raise actual bias and ‘ignoring of relevant evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness’. 

27                  Nothing the appellant has submitted in writing or orally casts any light on relevant questions. 

Anshun estoppel

28                  In my opinion, this is a clear case of at least Anshun estoppel (as to other than the Muin point) and there is no reason why the appellant should be relieved from the prima facie operation of that doctrine.  There are no special circumstances.  The only thing that might be a special circumstance, namely the decision in S157 following the Full Court’s judgment, would not, as the High Court found, have availed the applicant.

Abuse of process

29                  Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end.

30                  The proceedings, being groundless on their face, are an abuse of process.  The only matter that detained me at all was the suggestion that the Tribunal Member may not have considered a question that could be relevant to the reasonably foreseeable future in judging whether the appellant was liable to face a risk of persecution, namely whether there might be relevant ‘socio political and ethnic changes’ in his home country.  A reading of the Tribunal’s reasons for decision, however, shows that the appellant urged no such consideration upon the Tribunal and there was no requirement that the Tribunal should pluck that subject out of thin air and consider it.

Conclusion

31                  In my opinion, therefore, the appellant’s principal proceeding in this Court should be dismissed as incompetent, as the appeal is out of time.  Further, for the reasons given, leave to extend the time to make an application for leave to appeal should not be granted.  If, however, such leave should be granted, the application for leave to appeal should be dismissed.  In any case, it should be declared that the purported appeal is an abuse of process and that it is barred by the doctrine of res judicata or by the doctrine of Anshun estoppel.

32                  The appellant is to pay the respondent’s costs which I assess in the sum of $2,500.

Associate:

Dated:              6 April 2004