FEDERAL COURT OF AUSTRALIA

NBGO v Minister for Immigration and Citizenship [2007] FCA 1758

NBGO AND SZLFN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2023 OF 2007

COLLIER J

16 NOVEMBER 2007

BRISBANE (HEARD IN GRIFFITH)

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicants in the matter before me are mother and son, citizens of India who arrived in Australia in August 2003 and applied for protection visas. Before the Tribunal in 2004 only the mother, NBGO, advanced claims to be a person to whom Australia had protection obligations. Her son, SZLFN, sought a visa on the basis of being a member of her family unit. It is not in contention that SZLFN’s application for a visa can only be successful if NBGO is successful.

2                     The applicants have filed an application for leave to appeal from the judgment of Raphael FM given on 17 September 2007. In that case his Honour had granted an application by the first respondent for an order to summarily dismiss an application filed on 22 August 2007 by the applicants in the matter before me.

Background to application

3                     The background to this application is most efficiently explained by reference to his Honour’s Reasons for Judgment. Those reasons are sufficiently brief that it is possible to set them out in full:

“1.       There comes before me today an application by the first respondent for summary judgment dismissing an application filed on 22 August 2007. The application seeks review of a Tribunal decision made on 5 April 2004. The applicant has claimed that she was a person to whom Australia owed protection obligations on the grounds of her family’s association with the Sikh militant movement, in particular the Sikh Student Federation. The Tribunal did not accept that the applicant would have problems if she returned to the Punjab and affirmed the delegate’s decision to refuse her a protection visa.

2.         The applicant then took the steps available to her to seek review of the Tribunal’s decision to file an application for review in the Federal Court on 21 May 2004. That application was referred to this court and heard by Barnes FM who dismissed it on 19 July 2006. On 4 August 2006 the applicant filed a notice of appeal in the Federal Court but the appeal was dismissed by Rares J on 16 November 2006.

3.         On 8 December 2006 the applicant filed an application for special leave to the High Court which was dismissed by Gummow J and Heydon J on 2 August 2007. The applicant then brought these proceedings which seek review of the same Tribunal decision. The application itself is in a standard form clearly copied from some other form and raises no matters that could not have been raised at the earlier hearings.

4.         Before me today the Minister seeks an order that I make a finding that the proceedings are an abuse of process pursuant to the Federal Magistrates Court Rules 2001 Rule 13.10(c). The applicant in response has told me that she would suffer problems if she returned to India and that she did not receive justice in relation to the Tribunal hearing or the series of hearings before the three Federal Courts. She tells me that her sons are already in trouble although as two of them live in India there would not be very much that she could do for them even if she was granted a protection visa.

5.         It is well known that there is a large Sikh Indian community in Griffith from where the applicant comes. It is in the interests of justice and of that particular community that it is made absolutely clear to them that there is no point whatsoever in trying to prolong a stay in this country by refiling proceedings for a review of decisions that have already been reviewed by all the available courts. It involves the community in costs and expenses and avails the applicants nothing other than an indeterminate continuation of their stay under the pressure of a Damoclean Sword hanging over their heads in the shape of the Department of Immigration & Citizenship.

6.         An application such as the one before me is clearly an abuse of process. As the applicant can see, just a month has passed since she filed it before it is dismissed. The amount of time she has thus gained to remain in this country is so small that it seems to me hardly worthwhile.

7.         I dismiss the application. I order that the substantive applicant pay the first respondent’s costs which I believe should be assessed on an indemnity basis. I have asked the Minister’s representative to send me a letter advising me of the amount of those costs. A copy will be sent to the applicant. If she does not make any comment upon it within 14 days of the date of the letter I would propose to make an order granting costs in the amounts there set out. I hope that the applicant will take the opportunity to advise her community in Griffith of the course taken today so that others may be warned.”

4                     The facts to which his Honour refers, including the previous hearings of the applicant’s claims in the Federal Magistrates Court (twice), the Federal Court of Australia (twice, including this application), and the High Court of Australia, are not disputed by the applicants.

5                     It is clear that the decision of Raphael FM is interlocutory in character in that, in dismissing the applicants’ application pursuant to r 13.10 Federal Magistrates Court Rules 2001, his Honour did not dispose of any of the substantive issues the appellants sought to raise: Rana v University of South Australia [2004] FCA 559 at [6]-[15], In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6]. Accordingly, the applicants require leave of the Court pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) to appeal from his Honour’s decision.

Grounds of the Application

6                     The grounds of the applicants in this case appear in an affidavit of the first applicant annexed to the application for leave to appeal. Those grounds are:

“1. Attched (sic) is a copy Refugee Review Tribunal decision.

2. Attched (sic) is a copy Federal Magistrate Court decision.

3. Danger of life from India.”

7                     Also annexed to the application for leave to appeal is a draft notice of appeal as follows:

1. The Appellant appeals from the whole of the Judgment of Raphael FM Magistrate of Federal Magistrates Court of Australia, given on 17 Sep 2007 at 9.30 am at Sydney General Federal law Registry, Level 16, law Courts Building, Queens Square, Sydney NSW 2000. The appellant is waiting for the Decision of the Court.

GROUNDS

1. The Raphael FM Magistrate (sic) did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.

2. The Tribunal did not have jurisdiction to make the decision

3. The decision was not authorised by the Act or the Regulations made under the Act.

4. The decision was an improper exercise of the power conferred by the Act or the Regulations.

5. The decision involved an error of law being and incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.

6. There was no evidence or other material to justify the making of the decision.

D.        JURISDICTION

The Appellant invoke the jurisdiction of this Full Federal Court of Australia, by reason of the Migration Act 1958 and the accrued jurisdiction of the Court.

E.         RELIEFS CLAIMED

The Appellant claim by way of principal relief

1.      A declaration that the decision is invalid and contrary to law.

2.      An Order setting aside the decision.

3.      An Order that the Honourable Judge give further consideration according to law to all matters to which the decision relates, subject to such direction as the Court thinks fit.

4.      An injunction, both interim and interlocutory restraining the Respondent, his delegates, officers, servants and agents pending the determination of these proceedings or further Order from removing the Appellant from Australia.

5.      An order that the Respondent pay the Appellant’s costs of this proceeding

6.      Such further Orders as the Court thinks fit

DATED : 9/10/2007”

8                     I note that the grounds in the applicants’ draft notice of appeal are, with immaterial variations, identical to the grounds in the Notice of Appeal filed by the first applicant in NBGO v MIMA (NSD 1483 of 2006), which was dismissed by Rares J in his Honour’s decision found at [2006] FCA 1743.

9                     It is also clear that the grounds of the application before me, and the draft grounds of appeal, do not address the reasons of decision of Raphael FM in dismissing the applicants’ application, or the concept of abuse of process which was basis of his Honour’s decision.

10                  The applicants filed written submissions in support of their application. I note that these written submissions are identical to the written submissions which were filed in the proceedings before his Honour below.

Conclusions

11                  Principles relevant to the grant of leave to appeal in this Court are well-settled. As the Full Court said in Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542:

“In accordance with the practice frequently adopted by the Court in applications for leave to appeal from interlocutory orders, we permitted counsel for both parties to address us, not only on that application, but on the grounds of appeal sought to be advanced, assuming, for the purposes of the argument, that leave to appeal had been granted. With the benefit of a full appellate argument, we come to the conclusion, for the reasons we give below, that in some respects but not in others, the judgment was attended by sufficient doubt to warrant it being reconsidered; and that, in those respects, substantial injustice would result if leave were to be refused. We propose to grant leave to appeal accordingly.” (emphasis added)

12                  Accordingly, the key issue before me is whether the judgment of Raphael FM is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave to appeal were to be refused.

13                  In this case it is clear that, so far as concerns the first applicant, her claims for review of the decision of the Tribunal, and her grounds for such claims have already been the subject of earlier decision by the Federal Court, and are res judicata. Further, it is clear that an attempt to re-litigate matters already determined is an abuse of process and should not be entertained by the Court. In Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Lord Halsbury LC said that it would be:

“…a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. …it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.”

(see also Hunter v Chief Constable of the West Midlands Police [1982] AC 529 ; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11]-[12]; Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549; and Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500). Indeed, the patent abuse of process this case bears similar characteristics to cases dismissed by Moore J in SZASP v Minister for Immigration and Citizenship [2007] FCA 771, and I note as equally applicable to this case comments of his Honour at [1], [22] and [23].

14                  The appropriate order with respect to the claim of the first applicant is that the application be dismissed.

15                  The situation is somewhat less clear with respect to the second applicant in that I understand that SZLFN was not a party to earlier proceedings, other than those before Raphael FM in these proceedings. However, as I indicated earlier, I understand from the Reasons for Decision of the Tribunal made 5 April 2004 that his application is combined with that of NBGO in this matter, and that if the application of NBGO is unsuccessful the appropriate order is that the application as a whole be dismissed.

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Associate:

Dated:         16 November 2007