SZBDU v Minister for Immigration
[2006] FMCA 211
•1 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDU & ANOR v MINISTER FOR IMMIGRATION | [2006] FMCA 211 |
| MIGRATION – Review of decision of RRT – dismissed where applicant has had decision reviewed previously. |
| Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Wong v Minister for Immigration (2004) 242 ALR 722 |
| Applicants: | SZBDU, SZBDV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3366 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 February 2006 |
| Date of Last Submission: | 1 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Substantive application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The Registry not accept for filing any further application by either applicant without leave of the court relating to the decision of the Refugee Review Tribunal handed down on 16 July 2003 (file reference N02/44451), the decision of the delegate dated 2 September 2002 (file reference CLF2001/41468), or the notification of these decisions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3366 of 2005
| SZBDU, SZBDV |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me this morning an interlocutory application by the respondent to dismiss the substantive application filed by the applicant on 17 November 2005.
The grounds for the application are that no reasonable cause of action or basis for the application was disclosed; the proceeding or claim for relief is frivolous or vexatious; and/or the proceeding or claim for relief is an abuse of process. It is also argued that the proceedings are barred by res judicata or other estoppel, and the application is incompetent.
This is not the first time that the applicants have sought review of the decision of the Refugee Review Tribunal made on 20 June 2003 and handed down on 16 July 2003. The application was dismissed by Federal Magistrate Driver in this court on 2 February 2005. An appeal from the decision of the Federal Magistrate was dismissed on 10 June 2005 and on 20 October 2005 the High Court of Australia refused special leave to appeal from the decision of the Federal Court.
The applicant made the second application on 17 November. He filed with the application an affidavit. He claims in his affidavit at paragraph 2:
“I decided to file a new application under the Judiciary Act 1903 and the Migration Act 1958 in light of the recent judgment made by the Federal Magistrate Driver (SZFVL v MIMIA [2005] FMCA 991).”
That was a case where an applicant was successful on the grounds that:
“...it was procedurally unfair for the presiding member to make an adverse credibility finding based only upon the subjective opinion of the presiding member.”
The above quotation comes from the affidavit of the applicant. It does not accurately reflect the gravamen of the decision.
But the applicant has a far more serious problem. The decision he refers to was handed down on 7 September 2005, over a month before the applicant's application to the High Court of Australia for special leave was heard. Anything that he wished to say about this case could have been put before the special leave judges and the applicant's failure to do so brings the case firmly within the dicta of the Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. It is now clear that Anshun estoppel can apply to judicial review of administrative decisions: Wong v Minister for Immigration (2004) 242 ALR 722. The applicant has given me no evidence of any special circumstances which would allow me to ameliorate the rule in Anshun.
The applicant told me today that if he had been aware that the presiding member was unlikely to accept the story put by the applicant to it, he could have provided lots and lots of material. It is noteworthy that no material was provided to the Federal Magistrates Court at the time of the first hearing or to the Federal Court at the time of the hearing of the appeal or to the High Court at the time of the hearing of the application for special leave. No material has been provided to me.
I am satisfied that the applicant's attempt to re-litigate matters which could have been litigated originally is not only prohibited by the Anshun doctrine but is also an abuse of process. I dismiss the substantive application. The Minister has asked for indemnity costs. I would not propose to grant such costs but I will assess the Minister's costs of these proceedings in the sum of $2,000. The applicant is cautioned that whilst there is no prohibition on the exercise of his right to appeal this decision the costs order may be different at that stage.
The respondent also seeks an order that the Registry not accept any further application from either applicant seeking judicial review of a decision of the RRT concerning the applicants dated 20 June 2003, the decision of the first respondent's delegate concerning the applicants dated 30 August 2002 or the notification of these decisions without leave of the Court. I think that is a reasonable order to request and I will make it.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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