NBGO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBGO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 177

MIGRATION – Review of decision of Refugee Review Tribunal – abuse of process – res judicata – issue estoppel – Anshum estoppel – application dismissed.

Migration Act 1958 (Cth), s.477
Federal Magistrates Court Rules 2001 (Cth), rule 13.03(c)

Applicants: NBGO & SZLFN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 164 of 2009

Judgment of: Nicholls FM

Hearing date: 4 March 2009

Date of Last Submission: 4 March 2009

Delivered at: Sydney

Delivered on: 4 March 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: In person

Appearing for the Respondents: Ms B Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.

2. The applicants to pay the first respondent’s costs on an indemnity basis set in the amount of $1,900.

3. No further application by the applicants to review any migration decision relating to their protection visa application decided on 16 October 2003 be accepted for filing in this Court, except by leave of a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 164 of 2009

NBGO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. I have before me an application made on 22 January 2009 pursuant to the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 5 April 2004, and handed down on 29 April 2004, which affirmed the decision of a delegate of the first respondent to refuse protection visaS to the applicants.

2. The applicants are mother and son and are both citizens of India. They arrived in Australia in August 2003 and applied for protection visa on 16 September 2003.

3. I also have before me an application seeking summary dismissal of the applicant’s application. This was made by way of application in a case filed on 26 February 2009 by the first respondent, and was pressed before the Court today by the solicitor for the first respondent. 

4. The following material has been put before the Court in addition to the applications:

   1)Affidavit of the first applicant (“the applicant”) made on 22 January 2009, with annexure.

   2)Affidavit of Brin Ellen May Anniwell made on 26 February 2009, with annexures.

   3)Response filed by the respondent on 26 February 2009.

5. I note that the chronology relevant to this matter is set out in the affidavit of Ms Anniwell, and for the purposes of this judgment I adopt that chronology for the purposes of that Judgment. 

   “The first-named applicant (“the applicant”) arrived in Australia in August 2003. She applied for a protection visa on 16 September 2003.

   On 16 October 2003, a delegate of the first respondent gave a decision refusing the application for the protection visa …

   On 3 November 2003, the applicant lodged…