MZWZJ v Minister for Immigration

[2005] FMCA 1012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWZJ & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1012

MIGRATION – Review of Refugee Review Tribunal decision – estoppel – abuse of process – non-appearance – summary dismissal.

Migration Act 1958 (Cth)

M67 v The Honourable Philip Ruddock and The Minister for Immigration [2004] FMCA 79

Applicant: MZWZJ & ANOTHER

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 508 of 2005

Judgment of: Riethmuller FM

Hearing date: 17 June 2005

Date of Last Submission: N/A

Delivered at: Melbourne

Delivered on: 17 June 2005

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Counsel for the Respondent: Mr Ambikapathy

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The applicant’s application filed 9 May 2005 be dismissed.

2. There be no further application with regard to the Refugee Review Tribunal decision handed down on 14 December 2001 without the leave of the court.

3. The applicant pay the respondent’s costs fixed in the sum of $1500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 508 of 2005

MZWZJ & ANOTHER

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for judicial review of a decision of the minister in a refugee case whereby the applicant has been before the Refugee Review Tribunal.  The applicant was served with the notice of motion seeking a summary dismissal of the application and has not appeared before the court today, despite being called. 

2. The applicant first applied for review of the particular decision on 20 December 2001 in the Federal Court.  This application was dismissed by consent on 9 May 2002.

3. On 20 May 2002 the applicant filed an application for writs of prohibition and certiorari with respect to the RRT decision.  This application was filed in the High Court of Australia, and was subsequently remitted first to the Federal Court and then to the Federal Magistrates Court.  On 20 February 2004 the then Chief Federal Magistrate, now Bryant CJ, dismissed the matter in a decision which is reported as M67 v The Honourable Philip Ruddock and The Minister for Immigration [2004] FMCA 79.

4. The application on that occasion was dismissed on the basis of an estoppel either in the form of res judicata, issue estoppel or Anshun estoppel. 

5. The present application was filed in the Federal Magistrates Court on 9 May 2005, again seeking review of the same Refugee Review Tribunal decision.  It appears to me to be plain that this application is an abuse of the court's process and barred by estoppel in any event as it seeks to litigate issues raised in the previous decision or which ought to have been raised in those proceedings.  In the circumstances I dismiss the application.

6. I further order that the applicant be restrained from bringing further applications with respect to the Refugee Review Tribunal decision of 22 November 2001 without first obtaining leave of the court, having regard to the number of applications that have been brought and his failure to appear today. 

7. Costs in the sum of $1500 are sought.  Having regard to the Federal Magistrates Court scale and the nature of the work undertaken in this matter, I find that the sum sought is reasonable.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: