FEDERAL COURT OF AUSTRALIA

SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862

MIGRATION – application for leave to appeal – Tribunal decision considered and special leave refused – further application for review – new argument based on s 441G of the Migration Act 1958 (Cth) – Federal Magistrate held no jurisdiction – Anshun estoppel – no special circumstances – notification of Tribunal decision – authorised recipient served – reasonable inference that applicant in receipt of Tribunal decision – application dismissed

Federal Magistrates Court Rules 2001 (Cth), r 44.12(2)

Federal Court of Australia Act 1976 (Cth), ss 24(1)(d), 24(1A)

Migration Act 1958 (Cth), ss 424A, 441A(4)(c)(ii), 441G, 477

Metwally v University of Wollongong (1985) 60 ALR 68 cited

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

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189considered

SZIZO v Minister for Immigration and Citizenship (2008) 102 ALD 541 referred to

SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 referred to

Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10 considered

SZFMW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1531 of 2008

BENNETT J

10 December 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.         The applicant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from a decision of the Federal Magistrates Court, SZFMW v Minister for Immigration [2008] FMCA 1274, in which Driver FM dismissed his application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 11 December 2003 (‘the Tribunal decision’) on the basis of Anshun estoppel.  The Federal Magistrate’s orders were interlocutory (rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth)).  The applicant therefore requires leave to appeal to this Court (ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth)).  The first respondent opposes the application on the basis that Driver FM’s judgment is not attended with sufficient doubt to warrant leave to appeal being granted and no substantial injustice would result if leave were not granted.

2                     The applicant first sought review of the Tribunal decision on 17 January 2005.  In SZFMW v Minister for Immigration [2006] FMCA 768, Smith FM dismissed the application on the basis that the Tribunal decision contained no jurisdictional error.  In that application for review, there was no ground alleging a breach of s 441G of the Migration Act 1958 (Cth) (‘the Act’).  On 22 August 2006, Cowdroy J dismissed an appeal from that decision (SZFMW v Minister for Immigration and Multicultural Affairs [2006] FCA 1110).  The applicant sought special leave to appeal from the High Court (SZFMW v Minister for Immigration and Multicultural Affairs [2008] HCATrans 138).  On 7 March 2008, Heydon and Kiefel JJ dismissed the application saying that there were insufficient prospects of success to justify the grant of special leave to appeal.

3                     The applicant filed a second application for a review of the Tribunal decision on 28 July 2008 in the Federal Magistrates Court.  Federal Magistrate Driver said that the application faced two potential jurisdictional problems.

4                     First, Cowdroy J had found that the Tribunal’s ultimate finding was free from jurisdictional error and the High Court had found insufficient prospects of success to justify the granting of special leave.  Accordingly, the question whether the Tribunal decision was free from jurisdictional error had already been conclusively determined.  On that basis the Court would have no further jurisdiction.

5                     Second, Driver FM noted that the applicant sought to take advantage of a recent decision of the Full Court of the Federal Court in SZIZO v Minister for Immigration and Citizenship (2008) 102 ALD 541 concerning s 441G of the Act.  His Honour noted at [5] that the Court documents disclosed:

… an arguable case in that, while the Tribunal appears to have corresponded with the applicant’s authorised recipient at the postal address of the authorised recipient disclosed in correspondence, the Tribunal has apparently not corresponded with the authorised recipient at the office address stipulated in section C of the review application completed by the applicant.

6                     His Honour said that, while the issue was not raised in the earlier court proceedings, the principle of res judicata would still probably apply and that, even if it did not, there was no reason why the issue could not have been raised in the earlier legal proceedings.  His Honour said that the applicant was simply seeking to take advantage of a recent Court decision that appeared to favour an argument that could have been raised previously.  In his Honour’s view, the circumstances gave rise to an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10.  His Honour said at [5]: ‘Applicants cannot continue to agitate concluded litigation when new court decisions are made that appear to be to their advantage’ and dismissed the application.

7                     The grounds of appeal appear in the draft notice of appeal and are mirrored in the affidavit in support of the application for leave:

1.                  The Refugee Review Tribunal (the Tribunal) made a jurisdictional error as it did not apply the law according to s.441G.

2.                  The decision of the Tribunal is infected by jurisdictional error because of the breach of s.424A as admitted by the High Court.

3.                  There was no evidence in previous Courts as to when the appellant physically received the Tribunal’s decision. The current Court is asked to allow this appeal as time does not begin to run under s.477 until the actual physical delivery of the Tribunal’s decision to the applicant. (SZKNX). The Tribunal appears to have corresponded with authorised recipient not according to the address completed in the application. In light of SZIZO published on 3 July 2008 and within twenty eight (28) days the applicant became aware of the decision made by the Tribunal and the error of law involved.

8                     A number of those grounds, such as the alleged contravention of s 424A of the Act, clearly relate to the Tribunal decision that has already been the subject of consideration in the Federal Magistrates Court, this Court and the High Court.  The notice of appeal asserts that the Tribunal breached s 424A of the Act ‘as admitted by the High Court’.  There was no such finding by Heydon J (with whom Kiefel J agreed).  Rather, his Honour noted that even if there had been a breach, this did not affect a conclusion otherwise reached by the Tribunal that there was no Convention reason disclosed to found the grant of a protection visa.  Further, when the Tribunal decision was considered in this Court, Cowdroy J at [21] noted that he examined the judgment of the Federal Magistrate and the Tribunal decision to ensure that there was no jurisdictional error which escaped the attention of the applicant.  This ground constitutes an attempt to relitigate the Tribunal decision.

9                     An attempt to relitigate matters and decisions that have been the subject of litigation and consideration up to the High Court is an abuse of the process of the Court and vexatious and oppressive: SZCNP v Minister for Immigration and Citizenship [2008] HCASL 216; SZBPB v Minister for Immigration and Citizenship [2008] HCASL 164; MZXOW v Minister for Immigration and Citizenship [2008] HCASL 73.

The proposed reliance on s 441G of the Act

10                  At no time prior to the application before Driver FM did the applicant allege a breach of s 441G of the Act.  At the time the first application, heard by Smith FM, was filed, the applicant was represented by solicitors.  After the solicitors filed a notice of withdrawal and at the hearing, the applicant was self-represented.

11                  The applicant, who appears in person assisted by an interpreter, was unable to point to any error in Driver FM’s decision to dismiss the application on the basis of Anshun estoppel.  He reiterates the difficulties with his previous legal representatives and relies upon his lack of appreciation of what could have been advanced before Smith FM.

12                  There is no evidence of whether the applicant or his legal advisers were or were not aware of the possibility of reliance upon s 441G of the Act at any time prior to the decision of SZIZO.  Even if that section could apply in the present case, a later change to the law does not affect the fact that no jurisdictional error was found in the Tribunal’s decision.  In Wong the Full Court of the Federal Court applied Anshun in the context of judicial review of administrative action. The Full Court stated at [37] that:

In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties.

13                  There is no evidence that enables a factual determination of whether or not it is unreasonable not to have raised the point earlier.  Further, in Metwally v University of Wollongong (1985) 60 ALR 68 the High Court stated at [7] that:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

14                  The Full Court in Wong commented at [38] that where there are special circumstances that prevail to permit a party to raise an issue in a subsequent proceeding, the Court has a discretion, if it determines that “special circumstances” exist, to allow an issue to be raised even where it is found that the point was unreasonably omitted from the earlier proceeding.  The applicant does not advance any special circumstances beyond the fact that the argument was not put.

15                  Contrary to the assertion by the applicant, the failure to raise s 441G of the Act earlier and the fact that the applicant’s solicitors failed to appreciate that the applicant may have had an argument under s 441G of the Act does not constitute fraud on the Tribunal within the meaning of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; see also Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501.

16                  In any event, the Minister submits that the grant of leave to appeal is futile.  He points out that s 441A(4)(c)(ii) of the Act provides that the Tribunal may give a document to a person by posting it to the last residential or business address provided by the recipient in connection with the review.  The Minister says that the postal address disclosed in correspondence satisfies the requirements of that section.  On that basis no breach of s 441G of the Act could be made out as the Tribunal sent the correspondence to the authorised recipient at the postal address disclosed in correspondence between the authorised recipient and the Tribunal in respect of the review of the applicant’s application.

17                  In SZKNX v Minister for Immigration and Citizenship (2008) 104 ALD 475 the Full Court of this Court considered the meaning of notification for the purposes of s 477 of the Act.  The Full Court concluded that notification occurred when an applicant has physical possession of a decision by any means.  It is reasonable to infer that the applicant was in possession of the Tribunal decision at least by the time he filed his application for special leave to the High Court on 20 September 2006.  The applicant submits that the time runs from the date of the decision in SZIZO.  That is clearly not correct.  The application to Driver FM was made out of time.

18                  The applicant has not established special circumstances or exceptional circumstances that warrant a reconsideration of the Tribunal decision.  The applicant has not demonstrated any error in the Federal Magistrate’s conclusion that he had no jurisdiction to hear the application for review of the Tribunal decision.

19                  The application for leave to appeal is dismissed with costs.

Associate:

Dated:         10 December 2008