M154 v Minister for Immigration

[2004] FMCA 266

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M154 v MINISTER FOR IMMIGRATION & ANOR [2004] FMCA 266

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

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, [2000] FCA 1192

Applicant: APPLICANT M154 of 2002

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: THE REFUGEE REVIEW TRIBUNAL

File No: MZ 431 of 2003

Delivered on: 30 April 2004

Delivered at: Melbourne

Hearing Date: 30 April 2004

Judgment of: Phipps FM

REPRESENTATION

The Applicant appeared in person.

Counsel for the First & Second Respondents: Mr C.G. Fairfield

Solicitors for the First & Second Respondents: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent's costs fixed at $4814.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 431 of 2003

APPLICANT M154/2002

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 which commenced in the High Court of Australia on 6 September 2002.  The applicant seeks prohibition, certiorari and mandamus in relation to a decision of the Refugee Review Tribunal handed down on 22 January 2002.  By order of Hayne J in the High Court on 7 February 2003 the application was remitted to the Federal Court of Australia.  On 24 April 2003 Marshall J of the Federal Court transferred the application to the Federal Magistrates Court.  He gave directions for the filing of an amended application and contentions of fact and law by the applicant.  The applicant did neither of these things.  On 18 June 2003 Registrar Wood again ordered the filing of an amended application and contentions of fact and law.  The applicant did neither of those things.  By that order Registrar Wood fixed the application for 11 November 2003, but that hearing date was vacated and it was refixed for today, 30 April 2004.

2. The applicant is a citizen of Sri Lanka, of Sinhalese ethnicity.  He arrived in Australia on 5 November 2001 as the holder of a subclass 420 entertainment visa.  That visa was due to expire on 30 November 2001.  The visa was cancelled on 5 November 2001.  On 9 November 2001 the applicant lodged an application for a protection visa.  He claimed fear of persecution by reason of his political opinion due to his membership of the United National Party and his support for a particular United National Party politician.  A delegate of the first respondent refused the application for a protection visa on 6 December 2001.

3. On 13 December 2001 the applicant lodged an application for review with the Refugee Review Tribunal.  On 22 January 2002 the tribunal affirmed the delegate's decision to refuse to grant a protection visa.  On 18 February 2002 the applicant filed an application in the Federal Court to review the application of the tribunal.  On 2 April 2002 Heerey J dismissed the application for review.  The applicant was unrepresented and it appears from the judgment that he presented no substantive argument.

4. On 9 April 2002 the applicant lodged a notice of appeal to the Full Court of the Federal Court.  On 13 August 2002 the Full Court of the Federal Court dismissed the appeal.  On that occasion the applicant was represented by senior counsel.  The reasons for judgment of the Full Court of the Federal Court show that jurisdictional arguments were put by that senior counsel.  In Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 [2000] FCA 1192 Merkel J decided that principles of issue estoppel and res judicata applied in a situation which is indistinguishable from the current situation. That is an application which had been dealt with in the Federal Court dismissing appeals against decisions of the tribunal to refuse a visa.

5. Subsequently an application commenced in the High Court and was remitted to the Federal Court in relation to the same tribunal decision.  In this application the applicant has had the opportunity to put any arguments that could be put.  The documents filed in the proceedings in the Federal Court contain no grounds other than general grounds for review but given the applicant had representation in the Full Court of the Federal Court, he must have put all arguments forward which could be put.  In those circumstances the principles of res judicata must apply, which means that the applicant cannot commence a separate application in a different court, in this case the High Court.  The application must be dismissed.

6. I should add to my reasons that Mr Fairfield who appeared for the first respondent submitted that there were further reasons for dismissing the application.  In circumstances where there is a clear case of res judicata, it is not appropriate to consider those other arguments.  So the application is dismissed.

7. Application has been made for costs.  There is no reason why the usual rule that a successful party is entitled to costs should not apply.  The amount sought is $4814, which is less than has been allowed in similar applications which have commenced in the High Court.  I will allow that amount.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: R. Campbell

Date: 6 May 2004