MXCJ v Minister for Immigration

[2005] FMCA 1833

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MXCJ v MINISTER FOR IMMIGRATION [2005] FMCA 1833

MIGRATION – Res Judicata – estoppel – abuse of process

Migration Act 1958

Applicant: MXCJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 907 of 2005

Judgment of: Riethmuller FM

Hearing date: 13 September 2005

Date of Last Submission: 13 September 2005

Delivered at: Melbourne

Delivered on: 13 September 2005

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Ngo

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.

2. The applicant make no further application with regards to the decision of the Refugee Review Tribunal dated 15 January 1999 without the leave of the court.

3. The applicant pay the respondent’s costs fixed in the sum of $1,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MXCJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 15 January 1999.  The facts and circumstances are well set out in a number of other judgments that have already been delivered in this matter.

2. The applicant sought review of the decision in the Federal Court of Australia in proceedings VG63 of 1999, which proceedings were dismissed by consent by North J on 24 August 1999.

3. On 29 September 2000, the applicant lodged an application for an order nisi in the High Court of Australia in proceedings M111 of 2000.  Those proceedings came before Hayne J of the High Court on 26 November 2002, and a part of the proceedings was remitted to the Federal Court in matter V541 of 2003.  Those issues were determined by Heerey J on 23 September 2003 in Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036, wherein his Honour delivered written reasons for judgment dismissing the application.

4. The proceedings were again before Hayne J of the High Court on 21 September 2004, and the balance of the proceedings dismissed by his Honour with reasons for judgment given on that day.  On the last occasion the matter was before the court in the High Court, Mr Krohn, a well known advocate in the migration arena, appeared on behalf of the applicant to present the applicant's case. 

5. It appears to me that the proceedings of the applicant have already been determined in the past and that this application simply seeks to re‑litigate the same issues.  The application itself does not provide any particulars that relate specifically to an error in the decision that has not been canvassed in the past.  The affidavit refers to the potential impact of DNA test results, and the impact that may have on the fact‑finding of the tribunal, as DNA evidence only came to hand more recently.  However, the DNA material was exhibited to affidavit material and referred to in argument before Hayne J in the High Court.  His Honour dismissed the proceedings.

6. In the circumstances, it appears to me that there is a res judicata in this case.  There is also clearly an anshun estoppel in that the issues in the proceedings have been before the court now on three separate occasions in higher courts than the Federal Magistrates Court and the applicant has not had success on any occasion.

7. In the circumstances, it is not appropriate for the applicant to now commence proceedings in the Federal Magistrates Court, attempting to re‑litigate what are in substance the same issues. 

8. In any event, in the circumstances the applicant has been entirely unsuccessful in a number of previous proceedings.  The fact that these proceedings were issued again after a number of unsuccessful proceedings in the Federal and High Court demonstrates that they are an abuse of the court's process. 

9. I therefore dismiss the application.  I find that it is appropriate that the applicant pay the respondent's costs of and incidental to these proceedings and that the sum sought of $1,200 is reasonable, having regard to the relevant court scales.

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

Associate: 

Date: