MZWEC v Minister for Immigration
[2007] FMCA 2114
•9 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWEC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2114 |
| MIGRATION – Visa – review of RRT decision. MIGRATION – Appeal – Res judicata – estoppel. |
| High Court Rules, r.41.10.5 Migration Act 1958, ss.417, 477 |
| MZWEC & Anor v Minister for Immigration & Anor [2005] FMCA 1496 MZWEC v Minister for Immigration & Anor [2006] FCA 1696 MZWEC v Minister for Immigration & Anor [2007] HCA Trans 347 |
| Applicant: | MZWEC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1144 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 October 2007 |
| Date of last submission: | 9 October 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2007 |
REPRESENTATION
| Counsel for the First Respondent: | Ms Mitchell |
| Solicitor for the First Respondent: | Clayton Utz |
The applicant appearing in person.
ORDERS
The application be dismissed.
The applicant pay the costs of the respondent fixed at $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1144 of 2007
| MZWEC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 28 November 2001, notified to the applicant on 23 December 2001. The decision was the subject of a previous judicial review proceeding. Significantly, in December 2002 an application for an order nisi was made to the High Court and this application was refused, by consent, by Hayne J on 15 March 2004.
On 17 March 2004, the applicant applied to the Federal Magistrates Court for review of the proceedings and the matter was heard on 21 September 2005 before McInnis FM. On 12 October 2005, his Honour handed down judgment in MZWEC & Anor v Minister for Immigration & Anor [2005] FMCA 1496, dismissing the application. The applicant then appealed to the Federal Court in the proceedings VID 1361 of 2005. On 26 April 2006, Ryan J dismissed the appeal in a judgment, MZWEC v Minister for Immigration & Anor [2006] FCA 1696.
On 14 December 2006, the applicant filed an application for special leave to appeal to the High Court in proceedings number M161 of 2006. The special leave application was considered by Kirby and Callinan JJ under r.41.10.5 of the High Court Rules, as a result of which their Honours dismissed the application, publishing brief reasons as MZWEC v MIMA & Anor [2007] HCA Trans 347.
Consequently, the applicant has now applied for judicial review again in the Federal Magistrates Court in the present proceedings commenced in August of this year. The respondent, not surprisingly, objects to the proceedings continuing, saying that the proceedings are an abuse of process as they are an attempt to relitigate a matter that has already been the subject of litigation in this court and the subject of appeals that were unsuccessful, as well as the subject of a previous application to the High Court that was dismissed by consent.
At least to the extent that the matter was the subject of proceedings in this court and appeals, the substance of it has been determined. It appears to me that the application is barred as a result of the principles of res judicata and estoppel.
This case is brought many years after the decision was handed down. There is a time limit on bringing applications in the Federal Magistrates Court that is set by s.477 of the Migration Act 1958.
Under that section, an application must be brought within 28 days of the actual notification of the decision and the court has power to grant leave to extend that 28‑day time limit up to a maximum of 84 days from the actual notification of the decision. Even if I were to exercise all of the powers available to me under that Act with respect to time limits, this application would remain several years out of time. As a result, in this court I simply have no jurisdiction to deal with the present application.
I note that whilst the High Court has considered time limits in these matters and made comments to the effect that a time limit will not be validly imposed upon the constitutional jurisdiction of the High Court, it is a very different situation in the Federal Magistrates Court. This Court is entirely a creature of statute and has jurisdiction conferred upon it by statutes passed by Parliament, not as a direct result of the Constitution. In these circumstances, I can only have the powers that have been granted to the Court by the Parliament, and they are limited by s.477 of the Migration Act 1958. The result is that I simply do not have power to extend that time or to proceed on the basis that this court has jurisdiction to deal with the application.
The applicant has placed before me, in exhibit 1, material which goes to his reasons for his claim for refugee status and a protection visa, and other humanitarian bases upon which he relies to attempt to persuade me that a visa ought to be granted to him. I have no power to order a visa be issued or to grant a visa. The only limited power I have is to judicially review decisions of the Refugee Review Tribunal if applications are brought within the time limit under the Act. This application does not fall within that category and the additional material does not assist the applicant in his application before me.
It may well be the type of material that the Minister will pay careful regard to in an application to the Minister under s.417. However, it is not appropriate for me to comment upon how that application should be conducted, nor to make any comment upon how the Minister may wish to deal with that application, as that is a matter solely for the Minister and not for the Courts.
In the circumstances, I have found that I do not have jurisdiction to deal with the application and that, even if I do have jurisdiction, on the material, it appears to be barred as a result of res judicata or issue estoppel. I, therefore, have no option but to dismiss the application.
The applicant in this matter has been unsuccessful, having brought the proceedings in a court that cannot have jurisdiction with respect to his current application and in circumstances where this court has already ruled on his application in a judgment that has been unsuccessfully appealed. The usual principle that costs follow the event would appear appropriate in this case. The applicant points out that he has no funds to meet a costs order and asks that I take that into account. A lack of capacity to pay costs is not usually a basis for declining to order costs. It may have a practical impact upon the respondent actually obtaining the costs that are ordered, but - nonetheless - they are entitled to a costs order, having been successful in defending proceedings that were inappropriately brought.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date:10 December 2007
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