MZWND v Minister for Immigration
[2004] FMCA 1084
•30 November 2004
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:
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