MZXBN v Minister for Immigration

[2005] FMCA 1570

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXBN v MINISTER FOR IMMIGRATION [2005] FMCA 1570

MIGRATION – Visa – refugee visa – application for review of decision by Refugee Review Tribunal – the Tribunal’s decision the subject of a previous judicial review which was dismissed – res judicata – Anshun estoppel – abuse of process – application dismissed with costs.

Migration Act 1958 (Cth), s.477

Minister for Immigration v Karas (1992) 42 FCR 406
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant: MZXBN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1039 of 2005

Judgment of: Connolly FM

Hearing date: 26 October 2005

Date of Last Submission: 26 October 2005

Delivered at: Melbourne

Delivered on: 28 October 2005

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Ms K. Miller

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 23 August 2005 be dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $2,111.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1039 of 2005

MZXBN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were instituted by the application on 23 August 2005 with an application for review of the Refugee Review Tribunal’s decision of 4 June 2004.  It is supported by an affidavit which says no more than that the applicant requests the decision be set aside because of an alleged error of law and a failure to provide natural justice. 

2. The respondent has filed a notion of motion on 14 October 2005 seeking that the application be dismissed on one or more of the following bases:

   i)the application is incompetent because the decision under review is a privative clause decision and the application was made outside of the time provided for by subsection 477(1A) of the Migration Act 1958 (Cth); and/or

   ii)the proceeding is barred by the doctrines of res judicata and issue estoppel; and/or

   iii)it discloses no reasonable cause of action; and/or

   iv)it is frivolous or vexatious; and/or

   v)it is an abuse of process of the Court.

   The respondent also sought that the applicant pay the respondent’s costs of the application and of the motion, and such further orders as the Court deems fit.

   The notion of motion is supported by an affidavit by the respondent’s solicitor, Bryan Choon Jinn Wee, made on 13 October 2005 and an outline of the respondent’s submissions filed on 14 October 2005. 

The history of the matter

1. On 15 May 2002 the applicant applied for a protection visa and on

   
   

   23 August 2002 that application was refused by the delegate of the Minister of Immigration & Multicultural & Indigenous Affairs.  On

   
   

   11 May 2004 the Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the delegate.  Then on 29 June 2004 the applicant applied to this Court for a review of the Tribunal’s decision (being MLG 852 of 2004) (“the first application”).  That application was amended on 9 December 2004 and was dismissed by O’Dwyer FM on 20 January 2005.  The applicant then appealed to the Federal Court of Australia on 22 February 2005.  The application was dismissed by Marshall J, sitting as the Full Court of the Federal Court, on 15 March 2005.  The applicant sought leave to appeal to the High Court of Australia on 7 April 2005, and that application was refused on 5 August 2005.  As I have already indicated, the applicant then sought to repeat the whole process by filing an application in this Court on 23 August 2005. 

Conclusions and findings

1. I accept the submission of the respondent that the decision of the Tribunal is a privative clause decision in that O’Dwyer FM was satisfied that it was not affected by jurisdictional error and that application was dismissed. The current application is accordingly incompetent in that it is filed outside the time specified in s.477 of the Migration Act 1958 (Cth).

2. The respondent further contends that the dismissal of the first application by O’Dwyer FM precludes the applicant from his current application because of the doctrine of res judicata.  O’Dwyer FM said at [3] of his reasons for dismissing the application on 20 January 2005 that:

   … The Tribunal was very thorough in its exploration of the evidence presented to it, and the conclusions reached exhibit probative logic.  I cannot find any error at all, let alone jurisdictional error…

   An appeal from that judgment was dismissed by Marshall J on the basis that the applicant did not have an arguable case.  Special leave to the High Court from the judgment of Marshall J was refused.  McHugh J stated that “there is no jurisdictional error or ground on which to disturb the decision of the Federal Court.” 

3. The respondent submitted that the dismissal of the first application by O’Dwyer FM precludes the applicant bringing the current application to challenge the Tribunal’s decision because it is barred by the doctrine of res judicata.  The current application is unclear in that it does not particularise any grounds for review.  However in my view the cause of action that was the subject of the judgment of O’Dwyer FM is the same cause of action in that it arises out of the same set of facts and their asserted legal effect as the current application.  I am satisfied that the doctrine of res judicata applies. 

4. In the event that the current cause of action could be construed as a different cause of action from that raised in the first application that was dismissed, then the application shall nevertheless fail because of the operation of an Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). The Anshun estoppel principle has been applied to proceedings in which an applicant seeks judicial review of an administrative decision (for example, Minister for Immigration v Karas (1992) 42 FCR 406). The application of the principle requires consideration of: firstly, whether it was unreasonable for the applicant not to have advanced his full claim in the proceedings before O’Dwyer FM; and secondly, whether there are special circumstances which warrant the Court declining to apply the principle of Anshun estoppel to the present proceeding. 

5. In the first application, the applicant took the opportunity to clarify his claim by filing an amended application and contentions of fact and law.  The applicant did not appear at the hearing before O’Dwyer FM.  The respondent submits and I accept that the applicant had ample opportunity to advance his full claim in the proceedings before O’Dwyer FM and any failure to do so was unreasonable.  There is certainly no explanation as to why it was not done in the event that it is suggested that there is any alternative basis for review.  There are no special circumstances that stand in the way of the ordinary operation of the Anshun principle.

6. I am further satisfied that the whole process the applicant appears to be embarked upon is indeed an abuse of the Court’s process.  There is no reasonable cause of action disclosed and no arguable case, and in my view the applicant is merely attempting to use the Court’s process to enable the issue of a further temporary visa.  In all the circumstances I am satisfied that the application should be dismissed with costs, and I order accordingly. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:  J.O’Brien

Date:  28 October 2005