MZXAT v Minister for Immigration
[2005] FMCA 1312
•16 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXAT v MINISTER FOR IMMIGRATION | [2005] FMCA 1312 |
| MIGRATION – Review of Refugee Review Tribunal decision – non-attendance – abuse of process – summary dismissal. |
| Migration Act 1958 (Cth) |
| Applicant: | MZXAT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 733 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 16 August 2005 |
| Date of Last Submission: | 16 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | No Appearance |
| Counsel for the Respondent: | Mr B.J. Wee |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed pursuant to Rules 13.03A(c) and 13.10 of the Federal Magistrates Court Rules 2001.
The applicant make no further application for judicial review of the decision of the Refugee Review Tribunal dated 29 August 2002 without the leave of the court.
The applicant pay the respondent's costs fixed in the sum of $1,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 733 of 2005
| MZXAT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In this case the applicant was served with a copy of the notice of motion and an affidavit of service which was filed, confirming that service was effected by ordinary post on the applicant's address. The applicant did not appear today.
The applicant had lodged an application for a protection visa with the Department on 11 September 2001. On 11 December 2001 a decision was made to refuse the protection visa application. The applicant then applied on 8 January 2002 for a review of that decision by the Refugee Review Tribunal (‘the RRT’). The RRT affirmed the original decision-maker's decision on 29 August 2002.
On 18 October 2002 the applicant sought judicial review in the Federal Court of Australia. Those proceedings were in court file number V732 of 2002 wherein the applicant was referred to as BJAG. On
2 September 2003 the proceedings were dismissed by Weinberg J.
On 22 September 2003 the applicant appealed the orders of Weinberg J to the Full Court of the Federal Court. On 26 February 2004 the Full Court consisting of Whitlam, Marshall and Finkelstein JJ dismissed the applicant's appeal.
On 26 May 2005 the applicant sought special leave to appeal to the High Court. This application was refused.
The applicant has now commenced proceedings in this court seeking to relitigate the issues with respect to whether or not the decision of the RRT was affected by jurisdictional error. This application was filed on 20 June 2005.
In the circumstances of this case it appears to me that the current application is an abuse of process, as it effectively seeks to have a Federal Magistrate review a decision of Weinberg J and a decision of the Full Court of the Federal Court. One has only to state those circumstances to see that it is apparent that such an application is an abuse of the court's process as it is wholly inappropriate to seek to have a Federal Magistrate reconsider a case that has already been the subject of orders by the Federal Court both at first instance and appeal.
In any event, the application would be estopped on the basis that there has already been a judgment by another court dealing with the substantive issues in this case.
This matter should also be dismissed on the basis that the applicant has failed to attend today for hearing.
In the circumstances I therefore dismiss the current application pursuant to rules 13.03A(c) and 13.10 of the Federal Magistrates Court Rules 2001.
[Further discussion ensued]
In this case the applicant has exhausted the appeal rights from the first decision by Weinberg J and then sought to commence at a lower level court than that which he originally commenced proceedings.
In the circumstances it is appropriate that there be an order restraining the applicant from commencing further proceedings without first obtaining leave of the court as the applicant has demonstrated a propensity to commence proceedings despite the fact that the cause of action has already been determined.
I therefore make an order restraining the applicant from commencing further proceedings with respect to the RRT decision dated 29 August 2002 without first obtaining leave of a court.
I also order that the applicant pay the Minister's costs fixed at $1,800.00 on the basis that the Minister has been entirely successful in these proceedings and I find that the sum is a reasonable sum.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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