NAPV of 2002 v Minister for Immigration
[2005] FMCA 747
•27 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPV of 2002 v MINISTER FOR IMMIGRATION | [2005] FMCA 747 |
| MIGRATION – Notice of motion for summary dismissal – whether the application is incompetent pursuant to section 477(1A) of the Migration Act – whether the proceedings are barred by the doctrines of res judicata, issue estoppel and Anshun estoppel. |
| Migration Act 1958, s477(1A), s474 Federal Magistrates Court Rules 2001 |
| Somanader and Others v Minister for Immigration & Multicultural Affairs [2000] FCA 1192 |
| Applicant: | NAPV of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 538 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 May 2005 |
| Date of Last Submission: | 27 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent's notice of motion is upheld and the application is dismissed.
The applicant pay the respondent's costs on an indemnity basis fixed in the sum of $2000.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 June 2002, and handed down on 4 July 2002 be accepted for filing except with leave of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 538 of 2005
| NAPV of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me today a notice of motion brought by the respondent Minister for summary dismissal of this case on the grounds, firstly that it is incompetent pursuant to section 477(1A) of the Migration Act 1958 and secondly, that the proceedings are barred by the doctrines of res judicata, issue estoppel and Anshun estoppel. There is an additional application that the proceedings should be dismissed because they are an abuse of process and another, that the application fails to disclose a reasonable cause of action.
The respondent has kindly provided me with a chronology of the applicant's forays into the world of judicial review. The facts set out in the chronology are supported by an affidavit of John Stuart Kettle dated 16 March 2005. In short, the situation is that the applicant received his decision from the Refugee Review Tribunal on 4 July 2002. He applied for judicial review on 28 July 2002 but on 10 September 2002 filed a notice of discontinuance which Driver FM granted leave for him to file in accordance with the Federal Magistrates Court rules.
On 19 September 2002 the applicant commenced proceedings in the High Court. I am advised that the application to the High Court found at page 21 of the affidavit of Mr Kettle sought to challenge the privitive clause (section 474) of the Migration Act. On 10 April 2003, the applicant filed a notice of discontinuance of those proceedings. On
15 May 2003 the applicant commenced a second set of proceedings in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. On 24 July 2003, he again signed consent orders dismissing the application. Those orders were made by consent by Federal Magistrate Scarlett on 30 July 2003. Some 19 months later without any explanation whatsoever, save that he was still in the country, but presumably not the holder of a valid visa, the applicant filed this application for judicial review on 24 February 2005. The application says simply:
“That the Tribunal's decision on my protection visa application was a legal error of law. The particulars are that:
(1)The decision was an error of law.
(2)The decision was made with a preset mind.
(3)The decision was made contrary to the definition of the Refugee Convention.
(4)The Tribunal gave weightage [sic] to departmental speculative evidences but outrightly dismissed my factual evidences.”
The application itself was lodged some two years and seven months after the original decision and thus falls foul of the provisions of section 477(1A) of the Migration Act, which requires that such an application be made within 28 days of notification of the Tribunal's decision. There is authority of the Federal Court to the effect that the signing by an applicant of consent orders, dismissing his proceedings, constitutes an acknowledgment by that applicant that the decision is not one that contains a jurisdictional error: Daniel v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21.
It is clear law that the doctrine of res judicata apply when consent orders are made concluding proceedings; Somanader and Others v Minister for Immigration & Multicultural Affairs [2000] FCA 1192, per Merkel J at 36. As Ms Bautista says in her helpful written submissions:
“The substratum of facts giving rise to the right to review in these proceedings and in the previous proceedings, are the same in each case, the right to relief in each case is in form by the same substantive law principles and the proceedings do not differ in any material respect.”
I am equally satisfied the doctrine of issue estoppel would apply to these proceedings because the issues raised in this application have previously been put in issue and determined between the parties on three occasions.
To the extent that it is necessary, I would also indicate that I am satisfied that the principle of Anshun estoppel will apply. It is now clear that this principle does apply to administrative law matters, and has been applied by this court and by the Federal Court to proceedings seeking judicial review of a decision of the Refugee Review Tribunal. The applicant has had two previous opportunities in this court to put forward any claims which he might have had that the decision of the Tribunal was arrived at in jurisdictional error. On both occasions he effectively agreed that the Tribunal decision was correct by consent to the dismissal of his case.
If the findings I have made above were not sufficient, I would also say that the bringing of a third set of proceedings over the same decision of the Tribunal in this court must qualify as an abuse of process. There is an important public interest in bringing litigation to an end, and if a party was allowed to make continual applications to this court for the review of the same decision, the processes of the court will be brought into ridicule.
I dismiss the application. I order that the applicant pay the respondent's costs, which I assess in the sum of $2000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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