SZDCF v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1391

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal – res judicata – issue estoppel – Anshun estoppel – proceedings frivolous, vexatious and an abuse of process.

Federal Magistrates Court Rules 2001, rr.13.10, 44.12

Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105

Applicant: SZDCF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1874 of 2007

Judgment of: Cameron FM

Hearing date: 15 August 2007

Date of Last Submission: 15 August 2007

Delivered at: Sydney

Delivered on: 15 August 2007

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.13.10 of the Rules of the Court, the proceedings be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1874 of 2007

SZDCF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application dated 15 June 2007 the applicant seeks review of a decision of the Refugee Review Tribunal which is expressed by the applicant to have been dated 12 February 2004 and to have been received by him on 4 March 2004. Annexed to the applicant's affidavit sworn on 15 June 2007 is a copy of the Tribunal's decision expressed to have been made on 12 February 2004 and handed down on 4 March 2004.

2. The applicant submits in his written submissions that there are special circumstances justifying, in this case, the “non-application of the doctrine of Anshun estoppel” and the applicant has also submitted that he ought previously to have been able to have legal representation in the proceedings before this Court.

3. In his affidavit sworn 15 June 2007 at para.11 the applicant deposes that previously he was not able to present his case before the Courts through a legal representative and that if legal advice is available to him the outcome might be different. This evidence and these submissions reflect the fact that this is not the first occasion on which the applicant has sought judicial review of the Tribunal's decision.

4. In his response, the first respondent says that:

   a)the Court has no jurisdiction to entertain this application because it has been brought out of time;

   b)the applicant has previously instituted judicial review proceedings in relation to the Tribunal's decision in which the relevant issues have already been decided;

   c)there is issue estoppel including Anshun estoppel (Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589); and

   d)the applicant has no reasonable prospects of success, the proceedings are frivolous or vexatious and are an abuse of process.

5. Since the Minister's response was filed on 21 June 2007 the Full Court of the Federal Court has delivered its judgment in Minister for Immigration…