Nadeem v Minister for Immigration

[2004] FMCA 189

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADEEM v MINISTER FOR IMMIGRATION [2004] FMCA 189

MIGRATION – Application for review of decision of MRT – where applicant does not attend – where matter had been heard previously and the decision appealed – where applicant discontinued appeal proceedings – where applicant files new application – where respondent seeks summary dismissal.

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51
SZAWW and Others v Minister for Immigration [2003] FMCA 479
Walton v Gardiner (1992-93) CLR 378

Applicant: QAMAR NADEEM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1792 of 2003

Delivered on: 22 March 2004

Delivered at: Sydney

Hearing date: 22 March 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $2,500.00.

3. Applicant Qamar Nadeem is prohibited from filing any further proceedings seeking to set aside the decision of the Migration Review Tribunal made on 28 August 2002 in MRT Matter No N01/03019 without leave of the Court.  These orders do not apply to an appeal against these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1792 of 2003

QAMAR NADEEM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter, who has not attended the hearing today notwithstanding that the notice of motion was served upon him by courier, is a former student.  His application for a further student visa made on 20 March 2001 was refused by a delegate for the Minister because he found that the visa applicant had not substantially complied with condition 8202 which was a condition of the holding of a subclass 560 visa.

2. The applicant sought review of the delegate's decision from the Migration Review Tribunal who decided the matter on 28 August 2002.  The Tribunal determined to affirm the decision of the delegate.  The applicant then sought review of the decision of the Tribunal from the Federal Court of Australia by filing an application on 25 September 2002 in proceedings numbered N/1001/2002.  On 18 October 2002 Hely J ordered that the matter be transferred to this Court where it became proceeding SZ1135/2002.

3. On 14 February 2003 I heard those proceedings and delivered judgment dismissing the application.  I found that the applicant had not established any grounds for review or any jurisdictional error.  On 5 March 2003 the applicant filed a notice of appeal which were proceedings N189/2003.  On 20 March 2003 the matter was listed for a directions hearing but the applicant did not appear.  Conti J listed the matter for hearing on 22 May 2003 at 9.30am.

4. On 19 May 2003 the appellant in the appeal proceedings filed a notice of discontinuance.

5. Without wishing to be critical of the Department it would have been to the benefit of all concerned if, upon the discontinuance of the appeal, the appellant was removed from the country but that did not happen.  So, on 2 September 2003 the applicant was enabled to file the current application for review of the same Migration Review Tribunal decision that I had decided on 14 February 2003.  On 24 November 2003 this matter was listed for a directions hearing.  At that hearing I ordered that the applicant file and serve an amended application by 30 January 2004.  An amended application was filed, not by 30 January 2004 but on 17 February 2004.

6. It is clear from that amended application that it refers to the same decision of the Migration Review Tribunal but it particularises the allegations of jurisdictional error which are claimed.  These consist of a failure to exercise jurisdiction or lack of procedural fairness.

7. Mr Reilly, who appears on behalf of the Minister in the current application to dismiss those proceedings on the basis that they involve either a res judicata, or an Anshun estoppel or an abuse of process, tells me that there is nothing in the amended application and the particulars of that application which could not have been argued at the proceedings which were concluded on 14 February 2003.  He also says that the unparticularised allegations of jurisdictional error contained in the first application must include the particularised claims contained in the second.  Finally, Mr Reilly argues that it is an abuse of process by the applicant to bring these proceedings and it is likely to put the Court and the administration of justice into disrepute if this matter is heard, yet again, by the Federal Magistrates' Court when a judgment has been given that was appealed and the appeal was withdrawn.

8. It is now clear that a res judicata and Anshun estoppel can apply to administrative decisions with the possible exception of those decisions involving the life and liberty of an applicant: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 [42-79]. There is also little doubt that this Court can find that an application such as this would be an abuse of process:  SZAWW and Others v Minister for Immigration [2003] FMCA 479 in which at [12] Driver FM followed the view of the High Court in Walton v Gardiner (1992-93) CLR 378 at 393.

9. I am satisfied that in this case any one of the three grounds upon which Mr Reilly makes his application would apply.  The applicant in the first proceedings said that the MRT decision involved an error of law and jurisdictional error and that there was no material or other evidence to justify the making of the decision.  He presented his case which involved some information concerning problems which the applicant had with the Canterbury Business College.  It appears, from my judgment at least, to allude to those matters referred to in particular A of the applicant's amended application.

10. The applicant having withdrawn his own appeal from my decision it seems to me that there must be an issue estoppel in relation to the claim now being brought, however, if I am wrong about that I believe that it would be an estoppel of the Anshun type because if the applicant now wishes to raise matters that he did not raise before me then he has not established by evidence or otherwise why those matters could not have been raised at the initial hearing.

11. I would also hold, supporting the reasoning of Driver FM in SZAWW that an application of this type, namely the issue, after an abandoned appeal, of new proceedings to agitate and seek review of the same decision of the Tribunal that was previously litigated must be an abuse of process and something which, if the public were aware of it, would bring the Court into serious disrepute.

12. This is not the first time that this type of application has been made either to this Court or to the Federal Court.  I can only hope that the Minister and her department will become aware of this problem and ensure that it does not occur again by arranging for the early detention and removal of persons whose cases have been completed.  I dismiss the applicant's application and I order that the applicant pay the respondent's costs which I assess in the sum of $2500.

13. I would also order that the applicant Qamar Nadeem is prohibited from filing any further proceedings seeking to set aside the decision of the Migration Review Tribunal made on 28 August 2002 in MRT Matter No N01/03019 without leave of the Court.  These orders do not apply to an appeal against these orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: