Applicant S1198-2003 v MIMIA

[2006] HCATrans 116

[2006] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S511 of 2005

B e t w e e n -

APPLICANT S1198/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MARCH 2006, AT 9.16 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant, a citizen of Bangladesh, seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Allsop J) exercising the appellate jurisdiction of that Court. By those orders, Allsop J dismissed the applicant’s appeal against orders of the Federal Magistrates Court dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal made on 21 July 2000 and handed down on 3 August 2000 affirming the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

The application to the Federal Magistrates Court was the third application the applicant had made for relief relating to that decision.  The first was made soon after the Tribunal’s decision but, on 22 February 2001, was dismissed by Conti J, who held that the applicant had failed to make good the grounds of review.  The second was constituted by his participation in the Muin proceedings, some aspects of which were dealt with by this Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. This application also failed. The applicant filed the current application on 21 May 2004 well over three years after the decision he seeks to impugn. Mowbray FM concluded that, as Conti J had dismissed the applicant’s previous proceedings, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied and, since no exceptional circumstances existed, none of the issues which could have been raised in the earlier proceedings should be allowed to be raised. The only ground advanced in the Federal Court was that there were exceptional circumstances sufficient to provide an exception to Anshun; Allsop J rejected this argument.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

Whether and how principles of preclusion or allied principles apply where the claim made is for relief of the kind specified in s 39B(1) of the Judiciary Act may present important questions.  Where, as in the present matter, the application for such relief is made long after the decision that it is sought to impugn and the intervening period has been occupied with other litigation seeking to achieve a like outcome, it is not open to doubt that the relief sought should be refused – Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106‑108 [53]‑[56] per Gaudron and Gummow JJ.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.19 AM THE MATTER WAS CONCLUDED