A55 of 2003 v Minister for Immigration
[2006] FMCA 1078
•20 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
A55 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1078
MIGRATION – Review of decision by delegate of first respondent or Refugee Review Tribunal – refusal of application for protection visa – no jurisdiction to review decision of Delegate for first respondent pursuant to s.476 of the Migration Act 1958 (Cth) – whether res judicata relates to Refugee Review Tribunal’s decision – abuse of process – collateral purpose – no further filing without leave – applications dismissed.
Federal Magistrates Court Rules 2001, rr.13.11; 44.06(2)(a); 44.06(2)(c); 44.11; 44.12;
Migration Act 1958 (Cth), s.476
Federal Magistrates Act 1999, s.15
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (N297 of 2003 and N298 of 2003) - (2004) 204 ALR 722 at 736
Applicant: APPLICANTS A55 OF 2003
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG1784 of 2006
Judgment of: Emmett FM
Hearing date: 20 July 2006
Date of last submission: 20 July 2006
Delivered at: Sydney
Delivered on: 20 July 2006 REPRESENTATION
The Applicant appearing on his own behalf
Solicitors for the Respondent: Mr D. Sim, Clayton Utz ORDERS
(1)That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
(2)The application before this Court is dismissed.
(3)That the applicant be precluded from filing any further application in this Court without leave of the Court.
(4)That the applicant pay the First Respondent’s costs in an amount of $1750.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYG1784 of 2006
APPLICANTS A55 OF 2003 Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
1.On 23 June 2006 the applicants filed an application in this Court seeking judicial review of a decision to refuse the first named applicant a protection visa, upon whose grant the second, third and fourth named applicants depend.
2.Whilst the Refugee Review Tribunal (“the Tribunal”) is identified as a second respondent on the application, it is not clear from the grounds of the application whether the judicial review sought by the application is in respect of the decision of the Tribunal or the original decision of a delegate of the first respondent as the primary decision maker (“the Delegate”).
3.The first respondent seeks an order dismissing the applicants’ proceeding, pursuant to r.44.06(2)(c) Federal Magistrates Court Rules 2001 , on the basis that this Court has no jurisdiction to hear the application.
Delegate’s decision – s.476 of the Migration Act 1958 (Cth)
4.If the applicants proceeding is in relation to the decision of the Delegate, then, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), this Court has no jurisdiction to review a decision of the Delegate of the Minister.
5.Accordingly, to the extent that the application filed in this Court by the applicants on 23 June 2006 seeks review of the Delegate’s decision, this Court has no jurisdiction to hear such an application and the proceeding should be dismissed.
Tribunal’s decision – res judicata
6.The first respondent contends that, if the application is in respect of the Tribunal, decision, then there is a res judicata between the parties as to the issue of whether or not the Tribunal’s decision is affected by jurisdictional error.
7.The first respondent read the affidavit of David Anthony Sim, sworn
7 July 2006. Mr Sim’s affidavit chronicles the applicants’ prior proceedings in which judicial review was sought of that Tribunal decision.8.On 1 July 2003 Hayne J in the High Court of Australia remitted the applicants’ order nisi for constitutional writs to the Federal Court of Australia. On 4 September 2003 the Federal Court remitted the application to the Federal Magistrates Court. On 24 May 2004 the application to this Court was dismissed due to the failure of the applicants to comply with various court orders and directions.
9.On 15 June 2004 the applicants filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal decision. On 30 November 2004 an amended application was filed by the applicants in this Court.On 15 September 2005, I dismissed the applicants’ proceeding on the basis that the decision of the Tribunal was not affected by jurisdictional error.
10.Thereafter, in accordance with their rights, the applicants appealed to the Federal Court of Australia. On 9 December 2005, Wilcox J dismissed the applicants’ appeal on the basis that the Tribunal’s decision was not affected by jurisdictional error.
11.Thereafter, on 22 December 2005, the applicants filed an application for special leave to appeal in the High Court of Australia. On 13 June 2006 Gummow ACJ and Heydon J refused leave on the basis that the applicants’ application for special leave to appeal did not demonstrate that there would be any prospects of success in an appeal.
12.The applicants have exercised their full rights of appeal in respect of the Tribunal’s decision. There has been a substantive hearing on the merits of the applicants’ application for judicial review of the Tribunal decision by both this Court and that decision was considered by the Federal Court of Australia by Wilcox J.
13.The grounds relied upon by the applicant’s in the present matter before this Court are in the following terms:
“1. A reach (sic) of the rures (sic) of natural justice occurred in connection wich (sic) the making of decision. The decision was not notified of the Applicant and therefore the procedure that were required by law to be observed in connection with the making of the decision was not served.
2. The Delegate who purpoted (sic) to make the decision did not have jurisdictional (sic) to give the decisions. Minister does not have the power to make the decision in effect s 66(1) and s 66(2) of the Nigration (sic) Act 1958.
3. The Application is late however the Application Chan Ta Chera v MIMA, Plaintiff S157 of 2000 v Commonwealth (2005) FCA 1292 and (2003) 195 ALR 24
4. The Application is not vexation nor the abuse of process. A Delegate decision can be reviewed by court under certain circumstances.”
14.Plainly, the grounds appear to relate to the Delegate’s decision.
However, the application identifies the Tribunal as the second respondent and does not refer to the Delegate, in which case, there has been a final judgment in the earlier proceedings between the same parties on the same issue. In the circumstances, there is a res judicata in respect of the issues between the parties as to whether or not the Tribunal’s decision was affected by jurisdictional error and an estoppel would operate to prevent the applicants from succeeding in any such application in the future (Wong v Minister for Immigration and Multicultural and Indigenous Affairs (N297 of 2003 and N298 of 2003) - (2004) 204 ALR 722 at 736).
16.Accordingly, the application should be dismissed.
Abuse of process
17.If there has not been a res judicata between the parties in relation to the Tribunal’s review, then, in light of the conduct of the applicants in filing an application in respect of a decision in which they have had a substantive hearing and a full appeal and a dismissal of special leave application to the High Court, in my view, the applicants are bringing the proceedings for the collateral purpose of extending their stay in Australia.
18.In those circumstances, for the applicants to file again in this Court seeking judicial review of the Tribunal’s decision is an abuse of the processes of the Court and the application should be dismissed.
19.The first respondent also seeks an order that the applicants be precluded from filing any further application in this Court without the leave of the Court. The Court also has power pursuant to s.15 of the Federal Magistrates Act 1999 to make orders that it thinks appropriate. For the same reasons provided above for the finding that the applicants’ proceeding is an abuse of process, an order precluding any further filing in this Court in respect of either the Delegate’s decision or the Tribunal’s decision, is appropriate.
20.Accordingly, the applicants’ proceeding before this Court is dismissed.
ORDERS DELIVERED
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 28 July 2006
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