M153 v Minister for Immigration

[2004] FMCA 265

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M153 v MINISTER FOR IMMIGRATION & ANOR [2004] FMCA 265

MIGRATION – Application for prerogative writ – previous application to Federal Court – current application commenced in High Court – whether res judicata applies.

Migration Act 1958, s.483A

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192

Applicant: APPLICANT M153 of 2002

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: THE REFUGEE REVIEW TRIBUNAL

File No: MZ 429 of 2003

Delivered on: 28 April 2004

Delivered at: Melbourne

Hearing Date: 28 April 2004

Judgment of: Phipps FM

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Ms H.M. Riley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the applicant pay the first respondents costs fixed at $5403.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 429 of 2003

APPLICANT M153 of 2002

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

and

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal.  The applicant is a Sinhalese citizen of Sri Lanka.  He arrived in Australia on 5 November 2001 on a subclass 420 entertainment visa.  On arrival in Australia the entertainment visa was cancelled and the applicant was placed in immigration detention.  On

   
   

   9 November 2001 he applied for a protection visa on the basis of alleged death threats arising from his campaign work for an SLFP member of parliament in 1994. 

2. The application was refused by the first respondent's delegate on 6 December 2001.  The applicant lodged an application for review with the Refugee Review Tribunal on 13 December 2001.  On 17 January 2002 the tribunal affirmed the decision not to grant a protection visa.  An application for review of that decision was filed in the Federal Court on 21 January 2002.  The application was dismissed by Weinberg J on 15 March 2002.  The applicant filed an appeal to the Full Court of the Federal Court against the decision of Weinberg J on 4 April 2002.  The Full Court of the Federal Court dismissed that appeal on 23 August 2002.

3. On 6 September 2002 the applicant filed in the High Court an application for an extension of time, prohibition and certiorari in respect of the tribunal's decision.  That application was remitted by the High Court to the Federal Court by an order of Hayne J made on 7 February 2003.  On 24 April 2003 Marshall J transferred the application to the Federal Magistrates Court.  He made orders for the applicant to file and serve an amended application and contentions of fact and law.  Neither was done. 

4. On 18 June 2003 Registrar Wood fixed the application for hearing on 10 November 2003.  He again made orders for the filing and serving of an amended application and contentions of fact and law.  That was not done.  The hearing date of 10 November 2003 was vacated and it was refixed for today, 28 April 2004.  No grounds for the application are put forward other than the general ones set out in the original application to the High Court. 

5. The submission made on behalf of the first respondent is that any rights of appeal or review that the applicant has have been exhausted by the proceedings in the Federal Court of Australia.  It is submitted that the principles of res judicata, issue estoppel and the Anshun principle apply (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).

6. The question of whether issue estoppel and res judicata can apply in these circumstances has been decided by the Federal Court by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192. In that case the application to challenge a decision of the Refugee Review Tribunal had been commenced in the High Court of Australia and remitted to the Federal Court. A previous application had been dismissed by consent. His Honour considered in detail the question of whether res judicata and issue estoppel could apply in those circumstances and he decided that they did.

7. There is no distinction between that case and this one.  In the proceedings before the Federal Court the applicant has had the opportunity to put forward all possible arguments.  He put no argument before Weinberg J in the first instance.  In the application before the Full Court two points of natural justice were raised.  They were rejected.  The case which comes before this court is exactly the same.  The application before the Federal Court put forward no grounds for the application.  Weinberg J dealt with the application in those circumstances.  Before the Full Federal Court natural justice grounds were argued and rejected.  The situation is one where the whole of any case that the applicant has has already been dealt with. 

8. The fact that the application has been commenced in a different court, that is, the High Court, has been considered and decided by Merkel J in Somanader. The fact that this application is being heard in this court and not the Federal Court makes no difference. By s.483A of the Migration Act 1958 the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. This court is exercising the same jurisdiction as Weinberg J and the Full Federal Court has already exercised. Whatever rights of review the applicant might have had have already been dealt with in the Federal Court. They cannot be raised again in this court by whatever route the application gets here. The application is dismissed.

9. Application has been made for costs.  The first respondent is the successful party.  There is no reason why the ordinary rule should not apply.  That is that a successful party is entitled to an order for costs.  The amount sought is $5403.  That is less than the amount which has been allowed in this court for these types of applications such as these which have commenced in the High Court and been remitted.  I will therefore allow the amount sought of $5403. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: R. Campbell

Date: 6 May 2004