FEDERAL COURT OF AUSTRALIA

VWZG v Minister for Immigration & Multicultural & Indigenous Affairs

 [2005] FCA 1018

MIGRATION – application to review decision of Refugee Review Tribunal brought out of time – res judicata – Anshun estoppel – abuse of process – costs

Migration Act 1958 (Cth) s 477(1)

Connelly v Director of Public Prosecutions [1964] AC 1254 referred to

NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 179 cited

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 185 cited

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 178 cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited

Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 referred to

SZATJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 168 referred to

SZEUK v Minister for Immigration [2004] FMCA 829 cited

Walton v Gardner (1993) 177 CLR 378 cited

VWZG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID413 of 2005

WEINBERG J

21 JULY 2005

MELBOURNE

THE COURT ORDERS THAT:

1.           The application be dismissed as incompetent.

2.           Further, or in the alternative, the application be dismissed as an abuse of the process of the Court.

3.           The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     By notice of motion filed on 17 June 2005, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) moves the Court for the following orders:

“1.       Pursuant to Order 20 Rule 2(1) of the Federal Court Rules, the application be dismissed on the ground that the application constitutes an abuse of the process of the Court. 

2.         Further, or in the alternative, an order pursuant to the inherent jurisdiction of the Court (s 5(2) of the Federal Court of Australia Act 1976(Cth)) that:

            (a) the application is bound by the doctrine of res judicata; and/ or

            (b) the applicant is estopped from bringing these proceedings.” 

2                     The substantive application to which the notice of motion responds arises from a decision of the Refugee Review Tribunal (“the RRT”), made on 18 September 2002, and handed down on 15 October 2002.  On 8 November 2002, the applicant filed an application for judicial review seeking review of that decision.  On 13 March 2003, Moore J ordered that the application be dismissed: NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 185 (“NADP”).  In so holding, his Honour observed at [18]:

“In my opinion the only conceivable point raised in the submissions which may have been of substance concerned an argument based on the judgment of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  However there was no evidence before me which would justify findings of fact to create an analogous situation to that considered by the High Court.  There is no evidence that all the Part B documents were not before the Tribunal nor is there any evidence that the applicant would have conducted himself differently had he known they were not.” 

3                     On 31 March 2003 the applicant filed a notice of appeal seeking to challenge the orders and judgment of Moore J.  On 13 August 2003, a Full Court, constituted by Black CJ, Heerey and Finn JJ, ordered that the appeal be dismissed with costs: NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 178.  Their Honours said at [4]:

“His Honour concluded that, as there was no jurisdictional error, the application should be dismissed with costs.  There is nothing before us to cast any doubt upon the correctness of his Honour’s reasons and the appeal must be dismissed.”

4                     On 3 September 2003, the applicant filed an application for special leave to appeal to the High Court.  On 16 June 2004, he filed a notice of discontinuance in that Court. 

5                     On 15 June 2004, the applicant filed an application for review in the Sydney Registry of the Federal Magistrates Court.  On 11 November 2004, Raphael FM dismissed that application as incompetent: SZEUK v Minister for Immigration [2004] FMCA 829.  In doing so, his Honour held at [3]:

“On 15 June 2004, the applicant had filed this application.  The decisions of Moore J and the full bench indicate that their Honours considered that the decision of the Tribunal was a privative clause decision.  A privative clause decision is subject to subsection 477(1A) of the Migration Act1958 which requires that an application to this court under s.39B of the Judiciary Act 1903 and s.483A of the Migration Act must be made within 28 days of the notification of a Tribunal decision.  There is no power in the court to extend this time.  It is clear that the application to the court was made some years after the decision in question and as there is binding authority upon me that the decision itself is a privative clause decision, the application must be incompetent.”

6                     On 1 December 2004, the applicant filed an application for leave to appeal from the judgment of Raphael FM.  On 11 February 2005, the applicant filed a notice of discontinuance in that proceeding. 

7                     On 2 December 2004, the applicant filed an application for an order nisi in the High Court.  On 7 April 2005, he filed a notice of discontinuance in that proceeding. 

8                     The Minister contends that this Court has no jurisdiction to review the RRT’s decision as s 477(1) of the Migration Act 1958 (Cth) (“the Act”) provides that:

“An application to the Federal Court under section 39B of the Judiciary Act 1903 for:

(a)   a writ of mandamus, prohibition or certiorari; or

(b)   an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.”

9                     As the applicant has filed his application for review outside the mandatory statutory time limit, and there is nothing to suggest that the RRT’s decision is not a privative clause decision, the Court has no jurisdiction to hear the application: see SZATJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 168. 

10                  In any event, the application warrants summary dismissal.  The judgment and orders of Moore J in NADP were final, and resolved a controversy between the applicant and the Minister.  Accordingly, the doctrine of res judicata applies to the present application because, in substance, it seeks review of the same RRT decision that was the subject of the applicant’s previous judicial review application.  The facts giving rise to the right to review are the same, and the substance of the proceedings is the same.  The right to relief in each case is informed by the same principles of substantive law, and the proceedings do not differ in any material respect.  When Moore J dismissed the application in NADP,“the applicants’ rights in respect of those grounds merged in the judgment arising from the dismissal orders”: see Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 at [54].

11                  The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612-3 per Brennan J.  For that reason, the Court has no discretion to allow the matter to continue. 

12                  Alternatively, even if this matter were not governed by the doctrine of res judicata, the applicant would still be subject to the doctrine of Anshun estoppel.  The present proceeding is barred by the operation of that doctrine as the matters now sought to be agitated could certainly have been raised in the applicant’s earlier proceedings. 

13                  Finally, the applicant will be prevented by the doctrine of abuse of process from litigating questions that have already been determined.  In Walton v Gardner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said at 393:

“Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.” 

See also Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-2.

14                  In my view the current proceedings amount to an abuse of process because: 

·          the repeated bringing of applications for judicial review of the same tribunal decision is unjustifiable, vexatious and brings the administration of justice into disrepute;

·          there is an underlying public interest in the finality of litigation;

·          the current application for judicial review is devoid of particulars, and fails to disclose any arguable basis; and

·          in all, the applicant has brought seven proceedings in relation to the same RRT decision, three of which he has chosen to discontinue.  Having regard to his history of instituting proceedings, only to subsequently abandon them, I am prepared to infer that he has brought this application for the collateral purpose of extending the period of his stay in this country.

15                  The Minister submitted that these proceedings are a clear abuse of process, and ought to be summarily dismissed.  I agree, and will make that order.

16                  The Minister further submitted that the applicant should be required to pay costs on an indemnity basis.  There are grounds upon which such an order could be made.  However, after giving some consideration to this matter, I am of the view that costs should be ordered on the ordinary party party basis.  The applicant is unrepresented, and plainly has little idea of what he is doing, apart from hoping desperately that something may turn up to enable him to stay in this country.  There are many cases of this type in this Court.  It is not normally the practice to order indemnity costs in such cases, though it must be a matter to be determined in the light of the particular facts of any given case. 

17                  The Minister also submitted that the Court should order that no further application by the applicant to review the decision of the RRT, made on 15 October 2002, be accepted for filing, except with the leave of the Court.  While there is a basis for such an order, I am not disposed to make an order in those terms, at least in the absence of hearing from the applicant.  No doubt any attempt by the applicant to initiate further proceedings in relation to that RRT decision will be viewed with less charity, and may lead to more dire consequences. 

Associate:

Dated:              26 July 2005