MZWVF v Minister for Immigration
[2005] FMCA 1320
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVF v MINISTER FOR IMMIGRATION | [2005] FMCA 1320 |
| MIGRATION – Review of Refugee Review Tribunal decision – abuse of process – estoppel – non-appearance – summary dismissal. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWVF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1685 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 May 2005 |
| Date of Last Submission: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Carroll |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to Rules 13.10, 13.03A and 13.03 of the Federal Magistrate Court Rules 2001 the application filed on 23 December 2004 be dismissed.
The applicant not file any further application in relation to the decision dated 25 March 2003 without first obtaining leave of the court.
The applicant pay the respondent’s costs fixed in the sum of $2,395.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1685 of 2004
| MZWVF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to judicially review a decision of the Refugee Review Tribunal.
The matter has a lengthy history which is conveniently set out in the affidavit of Ms Elena Iolanda Arduca, filed on behalf of the respondent. That history is as follows:
3. On 14 May 2001 the applicant lodged an application for a Protection (Class XA) visa (“the protection visa”) dated
9 May 2001 with the Department.
4. On 20 June 2001 a delegate of the respondent refused to grant the protection visa to the applicant (‘the decision of the delegate”).
5. On 6 July 2001 the applicant applied to the Tribunal for review of the decision of the delegate. On 25 March 2003 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (“the Tribunal decision”).
6 On 22 April 2003, the applicant commenced proceedings in the Federal Court of Australia in Proceeding N499 of 2003 seeking review of the Tribunal decision. N499 of 2003 was commenced by an application pursuant to Part 8 of the Migration Act 1958 and section 39B of the Judiciary Act 1903.
7. On 30 July 2003, His Honour Justice Jacobson ordered that application N499 of 2003 be dismissed. His Honour delivered reasons for judgment.
8.On 16 August 2003, the applicant filed a notice of appeal from the judgment of His Honour Justice Jacobson in the Federal Court of Australia in Proceeding No N1031 of 2003…
9. On 3 November 2003, their Honours Justices Spender, Hely & Bennett ordered that appeal N1031 of 2003 be dismissed. Their Honours delivered reasons for judgment.
10. On 2 December 2003, the applicant filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia in proceeding S583 of 2003. An affidavit sworn by the applicant on 2 December 2003 was filed in support of the application.
11. On 30 November 2004, their Honours Justices Kirby and Callinan ordered that application for special leave to appeal S583 of 2003 is refused...
12. On 23 December 2004, the applicant filed the current application in the Federal Magistrates Court of Australia. The current application seeks review of the same Tribunal decision previously considered by the Federal Court, Full Federal Court and High Court as discussed in paragraphs 6 to 11 above.
In this case it is clear that the matter has been considered by Jacobson J of the Federal Court, who refused an application for judicial review.
The applicant then appealed to the Full Court of the Federal Court, which at that time consisted of Spender, Healey and Bennett JJ, who ordered that the appeal be dismissed.
The applicant then lodged an application for special leave to appeal to the High Court of Australia which was dismissed by Kirby and Callanan JJ.
It is apparent that the issues that are sought to be agitated in this case have already been dealt with by way of the judgment of Jacobson J, which has not been altered on appeal.
It is wholly inappropriate for a litigant to seek to have a Federal Magistrate consider making a different decision in a case where the matter has already been to a Justice of the Federal Court, let alone in the circumstances of this case where it has also been appealed to the Full Court of the Federal Court and the High Court. That is not the structure of the Australian judicial system, nor is it appropriate that the respondent should have to deal with the case on a second occasion.
There is nothing in the application or material to provide any indication of any unusual circumstance or fact or argument which might in some way indicate an argument against the usual rules of res judicata, issue estoppel or Anshun estoppel.
In the circumstances I dismiss the applicant's application.
It is appropriate that the applicant pay the costs of the application.
In this case the sum of $2,395.00 is sought. Having regard to the scale provided for in the Federal Magistrates Court schedule, I find that this is a reasonable sum in the circumstances of this case.
Given the nature of the application and the circumstances of the case, it also appears to me to be appropriate for an order to be made that the applicant not file any further judicial review application with respect to the Refugee Review Tribunal decision the subject of these proceedings, without first obtaining leave of the court.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date: 27 October 2005
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