MZWVK v Minister for Immigration
[2005] FMCA 830
•23 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVK v MINISTER FOR IMMIGRATION | [2005] FMCA 830 |
| MIGRATION – Review of Refugee Review Tribunal decision – abuse of process. |
| Migration Act 1958 |
| Applicant: | MZWVK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1693 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 23 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | MZWVK via telephone on his own behalf |
| Counsel for the Respondent: | Mr T.B.M. Mosby |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application filed 24 December 2004 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1693 of 2004
| MZWVK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed in the Federal Magistrates Court of Australia at Melbourne on 24 December 2004 seeking a variety of orders, presumably to the effect of the issue of constitutional writs to quash a decision of the Refugee Review Tribunal (‘the RRT’) in a refugee visa application by the applicant. The matter has been before the court on previous occasions.
The original decision of the RRT was in August 2002 and a review application was filed in Sydney at which the applicant appeared on 14 March 2003 and which was dismissed by a decision following the hearing of Driver FM. That decision was given on the same date. The decision of Driver FM was against the applicant after considering the nature of the applicant's claims.
The applicant then lodged a notice of appeal at the Federal Court. The appeal was dismissed by Wilcox J on 13 June 2003.
The applicant then sought special leave to appeal to the High Court of Australia, such special leave application being dismissed by the High Court.
The applicant then again commenced proceedings in the Federal Magistrates Court at Sydney on 5 October 2004 with respect to the same RRT decision. This application was summarily dismissed by Lloyd‑Jones FM on 9 November 2004, at which time his Honour ordered that no further applications be made without leave of the court. The applicant has not applied for the court's leave to bring this further application.
It appears to me that in the circumstances the applicant's matter has been heard and determined by this court, the Federal Court and a further attempt to relitigate it has been dismissed in this court before. It is not appropriate to allow the matter to proceed contrary to the orders of Lloyd‑Jones FM. If it were that leave was sought today, I would not be predisposed to grant such leave on the basis that there appears to be little by way of particularisation of the facts and circumstances claimed to found the application and no explanation as to why these matters would not have been raised and argued before Driver FM or Lloyd‑Jones FM.
A brief perusal of the decisions in the matter to date does not lead me to the view that there are any errors or oversights that ought to be the basis for a further hearing in this court. I am satisfied in the circumstances that this application is an abuse of process of the court, that it is made without leave and that in the circumstances, having regard to the previous decisions made in the case, that this application is also bound to fail.
In the circumstances I dismiss the applicant's application.
Having regard to the circumstances of the case and the scale provided for in the Federal Magistrates Court, I am satisfied that $2,000.00 is a reasonable sum to allow for the costs involved in this matter. I am also satisfied that it is appropriate that the applicant pay the respondent's costs in this matter given the circumstances which have led to the matter being before this court and the manner in which the case has been conducted throughout. I therefore order that the applicant pay the respondent's costs fixed at $2,000.00.
There is no point me making another order in the same terms as
Lloyd-Jones FM's order. In my view once a Federal Magistrate or Judge of the Federal Court has made an order that no further application be filed without leave of the court, it is appropriate that an application for leave to file an application for judicial review be filed and that leave be granted before filing the substantive application. Such an application ought to be supported by an affidavit setting out the facts and circumstances which would justify the grant of the leave, together with a draft of the application proposed to be filed. If that course is not adopted it would appear to me be an abuse of the process of the court to proceed and contrary to the existing orders.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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