Applicant S1279 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1706

FEDERAL COURT OF AUSTRALIA

Applicant S1279 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1706

APPLICANT S1279 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD1611 OF 2004

GYLES J
15 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1611 OF 2004

BETWEEN:	APPLICANT S1279 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1    The application for leave to appeal be dismissed.

2    The applicant pay the costs of the respondent.

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	NSD1611 OF 2004

BETWEEN:	APPLICANT S1279 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	15 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Driver FM by which the applicant's application for judicial review of a decision of the Refugee Review Tribunal of 11 May 2000 was summarily dismissed (Applicant S1279/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 748). It appears that the short history of the matter is as follows. The Refugee Review Tribunal decision was the subject of an application for review to this Court which was dismissed by O'Loughlin J on 13 October 2000. An appeal from the decision of O’Loughlin J was dismissed by the Full Court on 6 February 2001. An application for constitutional writs was filed on behalf of, inter alia, this applicant in the High Court on 29 May 2003 and was subsequently remitted to this Court where it was dismissed by Emmett J on 20 February 2004.

2. A fresh application for review of the Refugee Review Tribunal decision was filed in the Federal Magistrates Court on 9 March 2004 and it was that proceeding that was disposed of by the decision in question here.  The respondent Minister filed notice of objection to competency and also raised questions concerning res judicata, estoppel and abuse of process.  The learned magistrate dismissed the application as incompetent, on the ground that the decision was a privative clause decision to which the time limit in s 477(1A) of the Migration Act applies, and did not deal with the issues of res judicata, estoppel and abuse of process.

3. In coming to this decision the learned magistrate examined the Refugee Review Tribunal decision in the light of those matters that had been raised by the applicant and rejected all bases of attack.  The application for leave to appeal, the affidavit in support of it and the draft notice of appeal are very general and are not tied back to any particular alleged defects in the judgment below that could found a successful appeal.  I raised that problem with the applicant but as he is unrepresented and, I might add, was unrepresented before the learned magistrate, he has been unable to add anything of substance to those documents.

4. It is submitted on behalf of the Minister that there is no chance of success for any appeal.  In my opinion the applicant has not pointed to any appellable error in the judgment below and I can detect no obvious error myself.  Indeed, in my view, even if there were some arguable ground of appeal in relation to the basis for the decision, it would be inevitable that the proceeding would be dismissed by reason of one or more of res judicata, estoppel or abuse of process.

5. The application for leave is 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 Gyles.

Associate:

Dated:             21 December 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	A Markus of Australian Government Solicitor
Date of Hearing:	15 December 2004
Date of Judgment:	15 December 2004