SZFMW v Minister for Immigration and Citizenship

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.