FEDERAL COURT OF AUSTRALIA

Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1465

APPLICANTS S69 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND MR KENNETH NORTHWOOD, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD554 OF 2004

BENNETT J

27 OCTOBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondents’ costs.

3.                  The applicants not be permitted to file any further application seeking review of the Tribunal's decision dated 28 June 2002 and handed down on 23 July 2002 without the leave of the court.

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

REASONS FOR JUDGMENT

1                     On 8 March 2004 the applicants filed in the High Court this application for an order nisi seeking injunctions, mandamus and certiorari.  On 13 April 2004, the High Court remitted this application to the Federal Court.  It is not the first time that the decision of the Refugee Review Tribunal (‘the Tribunal’) in relation to these applicants has been before this Court.

2                     The applicants are husband, wife and child.  They are nationals of India who arrived in Australia on 15 March 1999.  On 13 April 1999, they lodged an application for protection (class AZ) visas.  On 31 May 1999, that application was refused by a delegate of the first respondent (‘the delegate’).  On 23 June 1999, the applicants applied to the Tribunal for review of that decision.

3                     The procedural history of this matter is of some relevance:

(a)                On 28 June 2002, the Tribunal affirmed the delegate’s decision.  On 23 July 2002, the Tribunal handed down its decision.

(b)               On 4 October 2002, Sackville J dismissed an application to this Court to set aside the Tribunal’s decision.  The applicant was legally represented before Sackville J.

(c)                On 11 March 2003, the Full Court dismissed an appeal from Sackville J’s decision.

(d)               The applicant applied to the High Court for special leave to appeal.  In refusing special leave on 13 February 2004, McHugh J said:

‘The Court has carefully considered the judgment of the Refugee Review Tribunal, the judgments in the Full Court, the written submissions filed by the applicant and his oral submissions in support of his case today.  We are of the view that no error is shown in the decision of the Refugee Review Tribunal and that an appeal would have no prospects of success.’

The first respondent’s notice of objection to competency

4                     The present application was filed on 8 March 2004.  This is clearly outside the time limit prescribed by s 486A(1) of the Migration Act 1958 (Cth) (‘the Act’):

‘An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.’

The first respondent objected to the jurisdiction of this Court to try this application on the basis that it was for the review of a Tribunal decision handed down on 23 July 2002, that the Tribunal’s decision is a privative clause decision and accordingly that s 486A of the Act applies.

5                     If this is a privative clause decision, the application is incompetent: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195.

6                     The seven grounds in the draft order nisi are not particularised and are general in nature.  One of the applicants, the father and husband respectively of the two other applicants, filed three affidavits, two sworn on 8 March 2004 and the other on 20 October 2004.  It was this applicant who appeared before me today on his own behalf and on behalf of his wife and child.  In the affidavit of 20 October 2004, the applicant makes several assertions such as an assertion that Sackville J:

‘Failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.’

In the other affidavits, sworn on 8 March 2004, the applicant appears to rely in part on a repealed version of s 476 of the Act.  These affidavits provide no assistance in identifying or comprehending the applicants’ specific complaints with the Tribunal’s decision.

7                     The first question raised by the notice of objection to competency is whether the Tribunal’s decision is a privative clause decision.  The Full Court said, at [22]:

‘The appellant has not demonstrated any error on the part of the primary judge nor any judicially reviewable error on the part of the Tribunal.’

The solicitor for the first respondent submits that I am bound by the decision of the Full Court which was to the effect that this is a privative clause decision.  If that is the case, this Court has no jurisdiction to hear this application as the application is out of time.

8                     The draft order nisi and the affidavits raised grounds that were clearly the subject of the previous decisions of the Court.  The first respondent submits that, in light of the previous judicial review of the Tribunal’s decision in this matter, the present application is barred by the doctrines of res judicata and issue estoppel: Somanader v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677.  In any event, even if fresh issues are raised, Anshun estoppel may apply: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242.

The applicant’s submissions

9                     The applicant appeared before me today unrepresented, assisted by an interpreter.  I asked him to tell me what he wished to say about the decision of the Tribunal or the decisions of the previous courts.  In substance, he raised matters, not in evidence, that went to the way in which he asserted the Tribunal conducted its procedures in notifying him of the hearing.  He alleged that the Tribunal was negligent in the way it conducted itself.  He did, however, give evidence before the Tribunal at two hearings on 12 February 2001 and 27 April 2001 and the decision of the Tribunal was extensive.

10                  The applicant also made reference to the fact that the Tribunal member reacted positively to his case but then, in a decision that was reserved for some months, found against him.  He sought to raise from that fact some sort of allegation of bias.  Clearly, no such bias on the part of the Tribunal has been established.  I note, in any event, that the applicant sought to raise the question of bias before the Full Court on the previous occasion and that the submission was rejected.

11                  The applicant raised a number of other matters that, while they are moving, went to the merits of his claims before the Tribunal and not to the question of jurisdictional error.  When asked whether he could point to any error in the previous decisions of the court he said that he felt that they had not heard him fully.  I note, however, that he has been through the court system and that he was legally represented, at least at the hearing before Sackville J.  The applicant has not, in any event, pointed to any jurisdictional error on the part of the Tribunal and, in particular, has conceded that the issues that he would wish to raise in this application are substantially the same as those that were the subject of his hearing before Sackville J.  These issues are basically questions of procedural fairness.

Conclusion

12                  It seems to me that the question of whether or not there was any jurisdictional error on the part of the Tribunal has been clearly dealt with by the Full Court.  Further, the High Court made it clear that it had carefully considered the Tribunal’s decision and came to the view that there was no error shown and that the appeal would have no prospects of success.

13                  Nothing has been put by the applicant that establishes jurisdictional error on the part of the Tribunal.  Even if I were wrong as to the application of s 486A of the Act and if there were a discretion to permit this application to be brought out of time, it seems to me that no arguable case has been raised by the applicant.  Further, the first respondent submits and I accept that the present application should be barred by the doctrines of res judicata and estoppel, both issue estoppel and Anshun estoppel.

14                  It follows that this application should be dismissed as incompetent with costs or, in the alternative, that it should be dismissed summarily, pursuant to O 20 r2 of the Federal Court Rules, with costs.  The first respondent submits that the former is appropriate.

15                  The first respondent also seeks an order that the applicant not be permitted to file any further application seeking review of the Tribunal’s decision without leave of the court.

16                  The applicant submitted that it was understandable that a person in his position would wish to take every opportunity to bring the matter back to the courts in the hope that one judge would, at some stage, be able to hear and determine the application in his favour.  It is important, however, that there is finality in litigation and that there not be a multiplicity of proceedings.  It seems to me that in the circumstances it is appropriate to make the order sought by the first respondent.

17                  Accordingly, the orders of the court are that:

1.                    The application itself be dismissed with costs.

2.                    The applicants not be permitted to file any further application seeking review of the Tribunal's decision dated 28 June 2002 and handed down on 23 July 2002 without the leave of the court.

Associate:

Dated:              18 November 2004

The applicants were self-represented