MZWGV v Minister for Immigration

[2005] FMCA 980

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWGV v MINISTER FOR IMMIGRATION [2005] FMCA 980

MIGRATION – Review of Refugee Review Tribunal decision – estoppel – summary dismissal.

Migration Act 1958 (Cth)

Applicant: MZWGV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 518 of 2004

Judgment of: Riethmuller FM

Hearing date: 6 April 2005

Date of Last Submission: N/A

Delivered at: Melbourne

Delivered on: 6 April 2005

REPRESENTATION

Counsel for the Applicant: MZWGV via telephone on his own behalf

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr Brereton

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the applicant’s application be dismissed.

2. That the applicant pay the respondent's costs in the sum of $2845.

3. There be no further applications brought by the applicant with respect to the decision of the Refugee Review Tribunal except by leave of the court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 518 of 2004

MZWGV

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 handed down on 21 August 1996.  It was returned to the RRT for reconsideration on 22 October 1998 and again returned to the RRT for reconsideration on 18 June 2000.  On 2 June 2000 the final RRT decision was made which is relevant to this case.  The matter has then been the subject of two applications to the court, one involving an appeal.  This history is set out at paragraphs 4 to 9 of the affidavit of Mr Bryan Wee which are in the following terms:

   4. On 28 June 2000 the applicant applied to the Federal Court of Australia for judicial review of the RRT decision in proceeding V451/00. Now produced, shown to me and marked “BCJW 2” is a copy of the applicant’s application to the Federal Court in proceeding V451/00.

   5. On 11 December 2000, the Honourable Justice North dismissed proceeding V415/00 with costs. Now produced, shown to me and marked BCJW 3” is a copy of the decision of North J dated 11 December 2000 which is reported at [2000] FCA 1961.

   6. On 2 May 2002, the applicant applied to the High Court of Australia for constitutional writs to impugn the RRT decision in proceeding M52/02. That proceeding was remitted to the Federal Court as proceeding V228/03. On or about 19 November 2003, the applicant filed an amended application and contentions of fact and law in proceeding V338/03. Now produced, shown to me and marked with the letters BCJW 4” is a copy of the applicant’s amended application and contentions of fact and law filed in proceeding V338/03

   7. On 5 December 2003, the Honourable Justice Heerey dismissed proceeding V338/03 with costs. Now produced, shown to me and marked with the letters “BCJW 5” is a copy of the decision of Heerey J dated 5 December 2003 which is reported at [2003] FCA 1495.

   8. On 27 January 2004, the applicant applied to appeal the decision of Heerey J to the full Federal Court of Australia in V64/04. On 10 February 2004, the Honourable Chief Justice Black made timetabling orders for the disposition of proceeding V64/04. Now produced, shown to me and marked with the letters “BCJW 6” is a copy of the Orders made by Black CJ dated 10 February 2004.

   9. On 6 May 2004, Black CJ together with the Honourable Justices Dowsett and Bennett refused the applicant’s application for leave to extend time for filing the application for leave to appeal and the application for leave to appeal itself with costs The court also dismissed the appeal as incompetent. Now produced, shown to me and marked with the letters “BCJW 7” is a copy of the Orders of Black CJ, Dowsett and Bennett JJ dated 6 May 2004.

2. The applicant in this application seeks the following orders:

   (1)    Set aside the decision of the RRT.

   (2)The decision of the RRT was error in law and did not follow proper procedure.

   (3)The tribunal failed to consider my case properly and the decision was made incorrectly.

   (4)    Return the case back to RRT for another hearing.

   (5)    Our costs.

   (6)    Any other relief the court thinks suitable for me.

3. It appears to me that the substance of these proceedings have been dealt with by North J who dismissed the proceedings with costs in 2000.  Heerey J then considered the matter and again dismissed the application and leave to appeal was not granted.  An appeal was dismissed as being incompetent by the Chief Justice of the Federal Court, Dowsett and Bennett JJ. 

4. In these circumstances there is clearly an estoppel in place, that is, there is a principle of law that proceedings not come back before the court again and again and that once an authoritative determination has been made in a matter, that should be an end to the litigation.  It would create an absurd situation should this case be heard and determined by a Federal Magistrate when it has already been determined by two different judges of the Federal Court.  It is not for the Federal Magistrates Court to be drawn into, in some form or another, reviewing decisions made by Federal Court judges.

5. In the circumstances, I therefore dismiss the application of the applicant and having regard to the history of the litigation, order that the applicant not bring further applications without first obtaining the leave of the court.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: