Applicant M59 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1507

FEDERAL COURT OF AUSTRALIA

Applicant M59 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1507

APPLICANT M59 OF 2004 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 1090 OF 2004

MERKEL J
22 OCTOBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1090 OF 2004

BETWEEN:	APPLICANT M59 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	22 OCTOBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The interlocutory application by the applicant for an order nisi be refused.

2.        The applicant pay the respondent's costs, which are fixed at $2000.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1090 OF 2004

BETWEEN:	APPLICANT M59 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	22 OCTOBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter the applicant has applied for an order nisi for constitutional writs in respect of a decision of the Refugee Review Tribunal (“RRT”) made on 30 March 1999.  Putting discretionary factors to one side for the moment, the applicant has not been able to point to any error in the decision.  His draft order nisi appears to be in a standard form and does not identify any specific error in the RRT’s decision.  I have read the decision and have not been able to detect any ground of error that would warrant the grant of an order nisi on the basis that an arguable case of error had been made out.

2. In addition, the applicant has already brought a proceeding in the Court to challenge the RRT’s decision.  The history of the proceeding is set out in the affidavit of Paul Christopher Barker of 20 October 2004.  It is sufficient to say that the outcome of the proceeding was that on 20 February 2004 Ryan J ordered that the application for an order nisi be refused with costs.  On 29 March 2004 an application for leave to appeal was dismissed. 

3. Subsequently, the applicant brought the present application in the High Court which remitted it to this court.

4. It is clear that the processes of the Court are not being properly used by the applicant.  Indeed, he indicated that if this proceeding is dismissed he proposes to institute a fresh proceeding, but was unable to offer any possible ground for doing so.  I have made it clear to him that that process would amount to abuse of the processes of the Court.  However, at this stage I am not disposed to make an order under Order 21 declaring the applicant to be a vexatious litigant.  If a further proceeding is brought by him the Court may need to be protective of its processes and such an order may well be applicable and appropriate at that stage.  In the meantime, in my view, it is incumbent upon the Minister, acting through her solicitors, to ensure that if a further proceeding is sought to be brought without any new reviewable ground being raised, the court in which the proceeding is brought should be made aware of the above matters.

5. I order that the interlocutory application for an order nisi be refused with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            23 November 2004

For the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	PC Barker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 2004
Date of Judgment:	22 October 2004