NAVL v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1317
•17 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
NAVL v Minister for Immigration and Multicultural & Indigenous Affairs
[2003] FCA 1317MIGRATION – no principle.
NAVL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1130 OF 2003
CONTI J
17 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1130 OF 2003
BETWEEN:
NAVL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
17 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application filed on 26 August 2003 be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1130 OF 2003
BETWEEN:
NAVL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
17 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By notice of motion filed on 31 October 2003, the respondent made application for orders summarily dismissing an application purportedly made pursuant to s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Refugee Review Tribunal (‘RRT’) made on 12 July 2002 whereby the decision of the Minister’s delegate to refuse the applicant a protection visa was affirmed.
Although the solicitors for the respondent duly notified the applicant of the hearing, the applicant did not appear at the hearing of the respondent’s notice of motion this morning. On 3 November 2003, a letter was sent by the respondent’s solicitors to the applicant at the address for service nominated in the application for judicial review enclosing a copy of the respondent’s notice of motion and supporting affidavit. On 10 November 2003, the respondent’s solicitors forwarded to the applicant written submissions in furtherance of the notice of motion before the Court.
On 29 August 2002, the applicant filed an application for review of the RRT decision of 12 July 2002. On 1 October 2002, that application was dismissed by consent of the applicant, and the applicant was ordered to pay the Minister’s costs of $560.00. That order by consent was plainly efficacious and binding upon the applicant: see Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 at [35].
On 26 November 2002, the applicant sought review of the RRT decision by the filing of an order nisi for mandamus, prohibition and certiorari in the High Court of Australia. On 7 February 2003, Justice Hayne remitted the matter to the Federal Court of Australia.
On 17 July 2003, the applicant sought an extension of time to commence proceedings in this Court apparently for review of the RRT decision. On 1 August 2003, Lander J dismissed the application for want of compliance with procedural orders made on 10 June 2003 by Selway J.
On 26 August 2003, the applicant made yet a further application to review the RRT decision of 12 July 2002. The purported claims the subject of this application are as follows:
‘This matter raises a constitutional question and now I am lodging the matter in the Federal Court in the hope that I would be given the opportunity to present the facts and my reason for not wanting to return to India before the full Federal Court judge.’
The purported grounds for the application are stated as follows:
‘1.I have the fear of being prosecuted upon return by a particular “mafia” group namely (“THAKUR COMPANY”).
2.The above fear has caused me depression and anxiety and such are unwilling to return.
3.I know the facts of this affidavit of my own knowledge, which information I believe to be true.’
The application is plainly misconceived and lacking any viable basis, and is an abuse of the Court’s processes: Walton v Gardiner (1993) 177 CLR 378 at 393. Moreover it is in the public interest that there be finality in the litigation which has been unjustifiably pursued by the applicant, and the respondent should not be repeatedly vexed in what in reality is the same matter of complaint on the part of the applicant: Johnson v Gore Wood & Co [2002] 2 AC 1 at [22-34] per Lord Bingham. Moreover, significant costs have already been incurred by the respondent in proceedings where the applicant has not attempted to advance his case in any meaningful way.
I accordingly dismiss the applicant’s application for judicial review dated 26 August 2003 and order the applicant to pay the respondent’s costs of the proceedings.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 17 November 2003
Applicant: No appearance Solicitor for the Respondent: Sparke Helmore Date of Hearing: 17 November 2003 Date of Judgment: 17 November 2003
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