S46 of 2002 v Minister for Immigration
[2004] FMCA 895
•4 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S46 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 895 |
| MIGRATION – Application by respondent Minister for summary dismissal – whether Notice of Objection to Competency should be upheld – whether proceedings are an abuse of process – where application for review in Federal Court dismissed by consent – whether costs should be on an indemnity basis. |
Migration Act 1958 (Cth), s. 477(1A)
Somanader v MIMA [2000] FCA 1192
| Applicant: | S463 of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2012 of 2004 |
| Delivered on: | 4 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant is to pay the respondent's costs assessed in the sum of $1,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2012 of 2004
| APPLICANT S463/2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me today an application by the Minister for interlocutory orders dismissing the applicant's application dated 30 June 2004, on two grounds. The first is that the application itself is not competent because of the provisions of s.477(1A) of the Migration Act 1958. The second is that pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules the proceedings are an abuse of process. The Minister also seeks orders giving her indemnity costs and an order that the applicant should be prevented from filing any further proceedings in relation to this matter (presumably other than an appeal against any orders I might make) without leave of the Court.
Although the applicant has never had a hearing as such of his complaints against the Tribunal he did commence proceedings in the Federal Court seeking review of the decision made on 24 May 2002 and handed down on 18 June 2002. These proceedings were commenced in the High Court of Australia and remitted to the Federal Court on 6 February 2002. The applicant failed to comply with orders of the Federal Court and on 11 November 2003 consent orders were filed, which Conti J appears to have pronounced on 17 November 2003. Those consent orders, copies of which are found in the affidavit of Andrea J Nesbitt dated 5 October 2004, were entered on 17 November 2003. The applicant signed the consent orders which were filed on 11 November 2003 himself. I make this point because in his address to me he appeared to indicate that he had been let down by his migration agent who had not explained things to him. I noted that somebody on his behalf had signed short minutes of order which are found as exhibits H and I to the affidavit of Ms Nesbitt but it was the applicant himself who signed the consent orders.
It is now firmly established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise a please of res judicata and issue estoppel as a bar to the litigation of the same issues between the parties in subsequent litigation: Somanader v MIMA [2000] FCA 1192 at [36].
The Minister argues that because of the consent judgment I am entitled to accept that the decision of the Tribunal was a privative clause decision and that therefore an application such as the one filed in this court on 30 June 2004 falls foul of s.477(1A). I note that the draft order nisi filed by the applicant in the High Court includes as ground B that the decision was affected by error of law and jurisdictional error and lack of procedural fairness. Those claims are also made as claims 1, 2 and 3 in the application of 30 June 2004. Paragraph 4 and 5 of that application contain a claim of Wednesbury unreasonableness and claims which were considered by the High Court in Yusuf which seem to me to be covered by the words "error of law" in subparagraph (b) of the claims made in the application for the order nisi.
I have not been asked by the Minister to make any order on the grounds of res judicata or issue estoppel but I accept that the matters raised in the new application were matters that for the purposes of an application such as this were "dealt with" and concluded by the consent judgment. This assumes the matters dealt with were matters within s.476 Migration Act. In those circumstances it would seem that the notice of objection to competency should be upheld and I uphold it.
This being the case it is not necessary for me to make any further remarks concerning the question of abuse of process.
I will dismiss the applicant's substantive applications. I will order that the applicant pay the respondent's costs which I assess in the sum of $1,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I will not make an order that the applicant pay indemnity costs because the applicant is a person who is not legally represented and to whom the complexities of the matters raised by the Minister in her notice of motion and application are probably overpowering. I will not make an order as requested concerning the applicant's rights to make any further application to this court. The reason for this is that a previous order made by me in that connection is the subject of an appeal to the Full Bench of the Federal Court in regard to which leave to appeal has been granted by Jacobson J. It would be best in the circumstances if such orders were not made until the Full Bench has decided upon their efficacy.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 26 November 2004
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