Applicant S1004 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1310

FEDERAL COURT OF AUSTRALIA

Applicant S1004 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1310

APPLICANT S1004 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1596 OF 2006

MOORE J
5 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1596 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1004 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	5 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Refugee Review Tribunal be added as a respondent.

3.The applicant pay the first respondent’s costs in the sum of $750.00.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1596 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1004 OF 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	5 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This purports to be an appeal from a judgment of a Federal Magistrate of 1 August 2006, dismissing as an abuse of process an application for judicial review of a decision of the Refugee Review Tribunal of 2 May 2000: see Applicant S1004 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FMCA 1090.

2. The applicant had previously applied, on 9 June 2000, for judicial review in this Court.  Whitlam J dismissed those proceedings (N 609 of 2000) by consent.  Subsequently, the applicant joined the “Muin and Lie class action” (Muin v The Refugee Review Tribunal & Ors, S36 of 1999 and Nancy Lie v The Refugee Review Tribunal & Ors, S89 of 1999) but discontinued from those proceedings on 19 June 2003.  Another application of the same nature was instituted and dismissed in April 2004.

3. On 27 May 2004, the applicant applied for judicial review of the Tribunal decision to the Federal Magistrates Court.  Federal Magistrate Lloyd-Jones found no jurisdictional error and, in any event, accepted arguments that res judicata and issue estoppel applied in dismissing the application on 28 January 2005: S1004 of 2003 v Minister for Immigration [2005] FMCA 11.

4. On appeal against that decision to the Federal Court, the applicant did not appear.  Dismissing the appeal, Gyles J noted the appellant’s flagrant disregard of normal procedures of the Federal Magistrates Court and this Court and that the present case demonstrated great abuse of the system:  Applicant S1004/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 593 at [6]. An application for special leave to appeal to the High Court from that decision was dismissed: Applicant S1004/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 285.

5. In this proceeding, the Federal Magistrate dismissed the application as an abuse of process having regard to the grounds advanced and the litigious history of the matter.  It appears to me that the Federal Magistrate was entitled to do so.  If leave was given any appeal is in my view doomed to fail, accordingly, leave to appeal should be refused with costs.  Costs should be fixed in the sum of $750.

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

Associate:

Dated:        23 October 2006

Applicant appeared in person.
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 2006
Date of Judgment:	5 October 2006