Applicant S256/2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1457

FEDERAL COURT OF AUSTRALIA

Applicant S256/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1457

MIGRATION – no point of principle

Migration Act 1958 (Cth)

APPLICANT S256/2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND DR RON WITTON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

N 1471 OF 2004

MOORE J
10 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1471 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S256/2004
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DR RON WITTON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

10 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first 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	N 1471 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S256/2004
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DR RON WITTON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MOORE J
DATE:	10 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 15 July 2004, the applicant filed originating process in the High Court of Australia which took the form of a draft order nisi and affidavit in support.  That originating process sought to challenge a decision of the Refugee Review Tribunal of 26 July 2002, or, as identified in the application, a decision of 20 August 2002 (the handing down date).  The application in the High Court had been preceded by litigation in this Court, the Federal Magistrates Court as well as the High Court.  Accordingly, the Minister has made an oral application to this Court, supported by an affidavit of 19 August 2004, asking that the proceedings commenced in the High Court on 15 July 2004 and since remitted to this Court be dismissed.

2. The Minister invokes the principles of res judicata and Anshun estoppel and also alleges that the proceedings are an abuse of process.  The decision of the Federal Magistrate referred to above was handed down on 20 February 2003.  His Honour dismissed an application that had initially been lodged in this Court on 16 September 2002 and remitted to the Federal Magistrates Court.  An appeal against the decision of the Federal Magistrate was dismissed by Hely J on 16 June 2003.  An application for special leave to appeal against the judgment of Hely J was dismissed by the High Court on 18 June 2004. 

3. I have read the application filed on 16 September 2002 and the reasons for judgment of Hely J of 16 June 2003.  In his Honour's reasons, Hely J cited the grounds that had been raised in the application and grounds that appeared to emerge from the submissions made by the applicant.  It is unnecessary to set out each of the grounds.  While the applicant traversed a range of issues in the application filed on 16 September 2002 and in submissions to Hely J, any additional issues which may be raised by the applicant in the present proceedings could have been raised in the earlier proceedings.  In my opinion, this is plainly a case where the principles of Anshun estoppel should be given full effect.  It is not apparent to me that there are any special circumstances which would suggest otherwise.

4. Accordingly, I dismiss the application with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             11 November 2004

The Applicant appeared in person.
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	10 November 2004
Date of Judgment:	10 November 2004