Applicant S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 133

FEDERAL COURT OF AUSTRALIA

Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133

MIGRATION – remitted proceeding for Constitutional writs following dismissal on merits by Federal Magistrate of application pursuant to s 39B Judiciary Act – application of estoppel (including Anshun estoppel) res judicata and abuse of process

Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372, upheld
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, applied

APPLICANTS S503/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1632 OF 2004

WILCOX, GYLES AND DOWNES JJ
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1632 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANTS S503/2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, GYLES AND DOWNES JJ
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellants 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	NSD 1632 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANTS S503/2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, GYLES AND DOWNES JJ
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of Jacobson J dismissing an application for Constitutional writs pursuant to s 75(v) of the Constitution of the Commonwealth of Australia (Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372). The proceeding was remitted to this Court by Heydon J of the High Court on 16 February 2004 pursuant to s 44 of the Judiciary Act 1903 (Cth). The relief sought was prohibition directed to the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and certiorari and mandamus directed to the Refugee Review Tribunal (the Tribunal) aimed at quashing and preventing enforcement of a decision of the Tribunal.

2. A brief chronology of relevant events is as follows.

3. The appellants are husband and wife.  They are citizens of Sri Lanka who arrived in Australia on 16 August 1999 and lodged an application for protection visas on 17 September 1999.  No separate claim was made on behalf of the wife and her application turns entirely on that of her husband, who is the real applicant.  A delegate of the Minister refused the application on 20 March 2000.  Application for review of that decision by the Tribunal was received on 3 April 2000.  By decision of 22 September 2002, handed down on 16 October 2002, the Tribunal affirmed the decision not to grant the protection visas.  The appellants were represented by solicitors in relation to the dealings with the Department and with the Tribunal. 

4. On 7 November 2002 the appellants brought a proceeding in the Federal Magistrates Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking certiorari prohibition and mandamus against the Minister and the Tribunal. On 16 June 2003 Driver FM dismissed the application and gave detailed reasons for that decision. An appeal against that decision was discontinued. On 16 September 2003 the current proceeding was commenced in the High Court. The relief sought is indistinguishable from that sought in the proceeding in the Federal Magistrates Court.

5. Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process.  There could not be a clearer case for the application of those principles (including Anshun estoppel).  There is no hint of any basis for avoidance of them.  It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]–[39] (special leave refused 4 February 2005). This proceeding is a transparent attempt to relitigate the same matter that was previously litigated. The attempt should not have gone as far as it did.

6. Jacobson J took the course of considering the merits of the attack upon the Refugee Review Tribunal’s decision afresh.  In our opinion, that course was unduly favourable to the appellants.  In the event, all grounds of attack were rejected in a reasoned decision.

7. The appellants again seek to argue the merits of the matter today.  In our opinion, no appealable error has been identified in the reasons of Jacobson J.  We cannot improve upon those reasons for rejecting the claims of the appellants. 

8. The appeal is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             20 July 2005

Counsel for the Appellants:	The Appellants appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005