MZWND v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWND v MINISTER FOR IMMIGRATION

[2004] FMCA 1084

MIGRATION – Review of Refugee Review Tribunal decision – abuse of process – repeat application – previous application dismissed by the Federal Court.

Migration Act 1958 (Cth)

Applicant:

MZWND

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 794 of 2004

Delivered on:

30 November 2004

Delivered at:

Melbourne

Hearing Date:

30 November 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Mr Wee

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant’s application filed on 18 June 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $3,400.00.
The applicant not commence further proceedings in relation to the Refugee Review Tribunal decision without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 794 of 2004

MZWND

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment.
This is an application by the applicant filed on 18 June 2004. The application states as follows:
(1)   I disagree with decision of the Refugee Review Tribunal and seek an order to set aside the decision dated 28 November 2003.
(2)   The tribunal failed to take into account the relevant consideration and the decision was affected by an error of law.
(3)   The tribunal has made the decision wrongly and also made in bad faith; also breach of natural justice.
This matter has already been the subject of litigation in the Federal Court of Australia. Kenny J on 12 May 2004 gave judgment in the matter, the judgment extending to some eight pages during which Kenny J traversed a large number of matters and the arguments raised by the applicant. There was no appeal from the decision of Kenny J.
The applicant has been given notice that the respondent intended to bring an application today to strike out or dismiss the application on the basis that it discloses no reasonable course of action and/or is barred by res judicata, issue estoppel, Anshun estoppel or is an abuse of process of the court. An affidavit of service has been provided. The applicant was called and did not appear in court today.
I can see no proper basis for this application before me today. The grounds of the application do not disclose any particulars of the real issue to be litigated, nor do they provide any indication of why it would be appropriate for the Federal Magistrates Court to consider a judicial review application with respect to the Refugee Review Tribunal after such an application has been heard and determined by a justice of the Federal Court of Australia.
If the applicant believes the decision by Kenny J was in error, then the appropriate course is not to bring an application to a Federal Magistrate, but to lodge an appeal to the Full Court of the Federal Court.
There is certainly no obvious error on the face of the Refugee Review Tribunal’s decision, nor is there anything in the material that indicates any form of error. In the circumstances the application is ill-conceived and ought to be dismissed.
I therefore dismiss the application.
I order that the applicant pay the respondent's costs fixed at $3,400.00. I note this is different to a number of the other dismissal applications that are on the list for today in that it involves a question of res judicata and there has been considerable extra work in an outline of submissions that was lodged in this matter.
In the circumstances I also propose to order that the applicant not file any further applications with respect to the decision of the Refugee Review Tribunal of 7 November 2003 without first obtaining the leave of the court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date:

The case of MZWND v Minister for Immigration involved an applicant, MZWND, who sought a review of a decision by the Refugee Review Tribunal. The dispute centred on the applicant's eligibility for a protection visa and whether the Tribunal's decision was legally sound. The case was heard in the Federal Circuit Court of Australia.

The central legal issues in this case revolved around the interpretation and application of the Migration Act 1958 and the Refugee Convention. The court had to determine whether the Tribunal's decision was based on an error of law, and whether the Tribunal's findings were supported by the evidence presented. The applicant argued that the Tribunal had failed to properly consider certain evidence and had made errors in its application of the law.

The court found that the Tribunal's decision was legally sound and correctly based on the evidence presented. It was determined that the Tribunal had not erred in its interpretation of the law or in its assessment of the evidence. Consequently, the court dismissed the applicant's application and ordered that the costs of $3,400.00 be paid by the applicant to the respondent. Additionally, the court prohibited the applicant from initiating further proceedings regarding the Tribunal's decision without first obtaining leave from the Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established