MZXPP v Minister for Immigration
[2007] FMCA 1018
•20 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1018 |
| MIGRATION – Protection visa. PRACTICE & PROCEDURE – Res judicata – final hearing – whether preferable to summarily dismiss for show cause hearing – first Court date – power to ‘determine the proceeding’ – whether ‘application of time’ – summary dismissal – whether ‘interlocutory or final’ dismissal pursuant to r.44.12(1)(a) – whether interlocutory and subject to application to set aside pursuant to r.16.05. |
| Federal Magistrates Court Rules 2001, rr.10.01, 10.02, 13.10, 16.05(2)(c) 44.05, 44.11, 44.12(1)(a), pt.44 Migration Act 1958, ss.424A(1), 477(1) Migration Litigation Reform Act 2005, sch.2 |
| S1603 of 2003 v Minister for Immigration & Anor [2005] FMCA 1878 Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542 |
| Applicant: | MZXPP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 324 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 20 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 20 June 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Solicitor for the First Respondent: | Mr M. Brereton |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 324 of 2007
| MZXPP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicant by application filed 21 March 2007 seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 9 October 1997. In its decision the Tribunal had affirmed a decision of a delegate of the First Respondent refusing to grant a protection visa to the Applicant. The chronology of events in this matter can be briefly referred to relying upon the affidavit of Maria Ngo sworn 7 June 2007.
In her affidavit Ms Ngo deposes that the Applicant is a citizen of Sri Lanka who arrived in Australia on 24 August 1995 and lodged an application for a protection visa on 22 September 1995. On 20 May 1996 a delegate of the First Respondent refused to grant the protection visa. The Applicant then lodged with the Tribunal an application on 28 May 1996. The Tribunal affirmed the decision under review as indicated in its decision dated 9 October 1997.
According to Ms Ngo's affidavit the Applicant joined what is known as the Muin and Lie class action in the High Court of Australia on 31 July 1998. His application was remitted to the Federal Court and subsequently dismissed by Emmett J on 20 February 2004. The Applicant then made an application to this Court, albeit in the New South Wales registry on 30 March 2004 in proceeding SYG925 of 2004.
That matter was transferred to the Melbourne registry of this Court. On 21 December 2005, I dismissed the Applicant's amended application with costs (see S1603 of 2003 v Minister for Immigration & Anor [2005] FMCA 1878). On 18 January 2005 the Applicant appealed from the judgment of this Court. That appeal was dismissed by Sundberg J on 12 May 2006 (see Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542).
The Applicant then sought special leave to appeal the decision of Sundberg J to the High Court of Australia. That application for leave to the High Court of Australia was dismissed by that Court on 5 October 2006. In proceedings M73/2006 the Applicant then purported to make application to this Court under r.44.05 of the Federal Magistrates Court Rules 2001 (the Rules). The matter comes before this Court today on what might be described as a first Court hearing date and is otherwise described by the First Respondent as a show cause hearing date pursuant to pt.44 of the Rules.
I note in passing that the Applicant has otherwise sought to rely upon an affidavit sworn by him on 21 March 2007. In that affidavit he does seek an extension of time within which to lodge the application. So that there is no misunderstanding, the First Respondent has relied upon a notice of objection to competency filed 1 May 2007 and relies upon the operation of s.477(1) of the Migration Act 1958 (the Migration Act), and argues that the application is filed outside the time limit set by that provision.
Given that the deemed notification date in an application of this kind pursuant to sch.2 of the Migration Litigation Reform Act 2005 is 1 December 2005, it is clear that the application having been filed on 21 March 2007 is well outside the time limit, and indeed well outside any time within which the Court may grant an extension which as I understand it from the legislation is a maximum period of 84 days, hence, the notice of objection to competency is valid and on that basis alone the application could be dismissed.
When the proceedings commenced, however, I raised with the parties the chronology of events, and it appeared to me in any event, that this application seeks judicial review of a decision which has already been the subject of a decision by this Court which was not disturbed on appeal to the Federal Court and which thereafter was the subject of an unsuccessful application for special leave in the High Court.
There is nothing raised in this application which would suggest that the principle of res judicata should not apply in those circumstances. The only issue I note referred to in the current application, is a purported non-compliance with s.424A(1) of the Migration Act which was clearly dealt with by this Court in its earlier decision in paragraph 14 as follows:
“14.It should also be noted that in this case the Applicant had sought to rely upon a breach of s.424A of the Migration Act 1958 (the Act). That ground can be dealt with in brief terms on the basis that the section relied upon was not in fact operational on the day of the Tribunal decision. Indeed it became operational on the days fixed by proclamation, which in relation to that section was 11 December 1998, which is more than a year after the Applicant's application had been finalised before the Tribunal; hence there is no merit in that ground relied upon by the Applicant.”
On appeal before the Federal Court by Sundberg J in paragraph 8 of His Honour's decision stated:
“8The Magistrate’s decision that s 424A was not applicable to the Tribunal cannot be doubted. The application for review was filed on 28 May 1996 and the Tribunal’s decision was delivered on 9 October 1997. Section 424A was inserted into the Act by clause 3 of Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998. Section 2 of that Act provided that Schedule 3 was to commence on a day or days to be fixed by Proclamation. The date fixed was 11 December 1998, which was more than a year after the Tribunal’s determination. Accordingly the section did not apply to the Tribunal during the conduct of the hearing.”
When the Court has before it an application of this kind, it is in my view preferable that a final decision be made. Although one might be tempted to make an order pursuant to r.13.10 of the Rules disposing of the matter by summary dismissal, it seems to me preferable where the principles of res judicata apply and where in any event it is obvious that the time limit applies, that the Court should not simply proceed to make an order of a kind which would be regarded as summary dismissal but should make a final order.
Likewise, I do not see any advantage to the parties in the Court proceeding as was indicated by the response of the First Respondent, to exercise the powers it undoubtedly has pursuant to pt.44 of the Rules. Specifically if the Court were to determine as clearly is the case, that there is no arguable case for relief in this matter and to proceed to deal with it as a show cause hearing and dismiss the application pursuant to r.44.12(1)(a) of the Rules, then that decision like a summary dismissal decision, would in my view be interlocutory. Whilst there may be some judicial debate about whether a summary dismissal is interlocutory or final, there can be no doubt that a dismissal pursuant to r.44.12(1)(a) is interlocutory. So much is made clear by the express provision of r.44.12 sub-r.2 which relevantly states:
"… a dismissal under paragraph 1(a) is interlocutory.”
That of course then raises the prospect that a decision to dismiss which could be characterised as interlocutory and may at least in theory provide an opportunity for an application to seek to set aside any order I make this day pursuant r.16.05 sub-r.2(c) of the Rules. In the alternative, as appears to have occurred in other cases in the past, an Applicant may otherwise seek the leave of a Federal Court to appeal from what would be described as an interlocutory decision.
Having regard to the history of this matter and the clear application of the principles of res judicata it seems to me preferable that the Court should proceed to make a final order dismissing the application with costs. I am satisfied that on a proper reading of the Rules, that this Court has power to do so. It is noted that under r.44.11 that a first Court date procedure is set out, and orders and directions are indicated in that rule which may be available to the Court. However, that rule clearly indicates that it does not seek to limit r.10.01 of the Rules. It relevantly provides:
“44.11 First Court Date
Without limiting rule 10.01, at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for any of the following:
(a) an immediate hearing under rule 44.12;
(b) a future listing for a hearing under rule 44.12;
(c)dispensing with a hearing under rule 44.12 and listing the matter for a final hearing on the grounds set out in the application;
…”
Rule 10.01 of the Rules provides for the power of this Court on a first Court date. This is a first Court date. Rule 10.01(2) provides as follows:
“Without limiting subrule (1), the Court or Registrar may hear and determine all or part of the proceedings.”
For the reasons given it is in my view preferable in this instance that the Court does hear all of the proceedings and does so by way of a final hearing. The Applicant has been unable to raise any arguments in response to the suggestion that the matter has already been heard and determined by this Court, and that the doctrine of res judicata applies. He has otherwise not been able to provide any submissions which can satisfy me that the matter is otherwise clearly outside the time limit relied upon by the First Respondent. In those circumstances I am satisfied in the exercise of the power that this Court has under r.10.02, that it is appropriate to proceed to finally determine this matter and to make a final order rather than as I have indicated simply an interlocutory order either pursuant to pt.44 of the Rules or otherwise make a summary dismissal order pursuant to r.13.10 of the Rules. It is also not appropriate to simply list it again for a final hearing under r.44.11(c) of the Rules.
It is evident to me on the chronology that I have recited in this judgment that this is a matter which has clearly been heard and determined by the Court and the doctrine of res judicata applies.
I do not regard the Court as being competent or having power to hear and determine this second application which does no more than seek to make a further application in a matter already properly heard and determined by this Court.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 June 2007
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