MZXGA v Minister for Immigration

[2006] FMCA 313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXGA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 313

MIGRATION – Application to review decision of the Refugee Review Tribunal – previous application dismissed – application out of time – no merit – dismissed.

Migration Act 1958 (Cth)

Applicant: MZXGA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondents: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1727 of 2005

Judgment of: Hartnett FM

Hearing date: 14 February 2006

Delivered at: Melbourne

Delivered on: 14 February 2006

REPRESENTATION

The Applicant: No appearance

Counsel for the First and Second Respondents: Ms O'Regan

Solicitors for the First and Second Respondents: Clayton Utz

ORDERS

1. The application filed on 30 December 2005 is dismissed pursuant to the following:

   a) s.477(1A) of the Migration Act 1958 (Cth), and;

   b) Rule 13.10(b) and 13.10(c) of the Federal Magistrates Court Rules 2001.

2. That no further application for review of the decision of the Refugee Review Tribunal handed down on 9 July 2004 shall be accepted for filing without the prior leave of the Court.

3. The applicant pay the costs of the respondent on an indemnity basis in the sum of $1,884.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1727 of 2005

MZXGA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant made application for judicial review of a decision of the Refugee Review Tribunal dated 16 June 2004.  Such application was filed 30 December 2005.  In support of that application an affidavit was sworn by the applicant on 26 December 2005.  The first and second‑named respondents filed a notice of appearance on 6 January 2006.  The first respondent filed a response to application on 13 January 2006, and an affidavit of Maria Denise O'Regan, Solicitor and a person authorised to make such affidavit on the first respondent's behalf.  The affidavit of Ms O'Regan annexes a copy of the Refugee Review Tribunal decision made 16 June 2004.

2. The applicant has instituted previous judicial review proceedings in respect of the same decision.  Such proceedings were numbered MLG1043 of 2004 and VID516 of 2005.  Both proceedings were determined finally and on the merits.  The proceedings numbered MLG1043 of 2004 are included in orders made by McInnis FM on 12 May 2005 that the applicant's application as amended be dismissed and that the applicant pay the respondent's costs, fixed in the sum of $6,500.  The applicant appealed from the judgment of McInnis FM.  That appeal was dismissed with costs by Heerey J in the Federal Court of Australia on 29 August 2005.  On each occasion, the applicant failed to appear.  On the hearing this day, the applicant fails to appear.

3. The current application amounts to an abuse of process and I find the applicant, in addition, fails in his application, on the basis of the principles of res judicata and issue estoppel and Anshun estoppel. Further, pursuant to section 477(1A) of the Migration Act 1958 (Cth) (the Act) an application to this court in respect of a migration decision must be made within 28 days of the actual notification of the decision. The application, filed 30 December 2005, is made in respect of a decision dated 16 June 2004. The applicant was notified of the tribunal decision by letter dated 9 July 2004. The delegate had refused the applicant's application for a protection visa on 22 May 2003. Subsection 477(2)(b) of the Act provides that leave to extend the time limit may be granted where the court is satisfied that it would be in the interests of the administration of justice to do so.

4. The applicant was aware of the decision of the tribunal well prior to 30 December 2005, as evidenced by his earlier litigation proceedings.  There has been a final determination of the same subject matter and it would not be, I find, in the interests of the administration of justice that this court extend the statutory time limits for the current application.  Further, it would not be an efficient administration of justice to allow the applicant to make further application for judicial review without the leave of the court being first obtained.  In my view, this application is a blatant abuse of process and as a consequence it is appropriate that the applicant pay the respondent's costs on an indemnity basis.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Tracey Jones

Date:  14 February 2006