SZDCT v Minister for Immigration

[2006] FMCA 641

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 641

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant has had previous proceedings in Federal Magistrates Court, Federal Court and High Court.

PRACTICE & PROCEDURE – Res judicata – abuse of process – competency – application is out of time – where decision handed down on 25 February 2004 and application for review filed on 22 March 2006.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A. 477
Migration Litigation Reform Act 2005 (Cth), s.42
Federal Magistrates Court Rules 2001 r.13.10

SZDCT v Minister for Immigration [2004] FMCA 957
SZDCT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 329
SZDCT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA Trans 123

Applicant: SZDCT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 846 of 2006

Delivered on: 24 April 2006

Delivered at: Sydney

Hearing date: 24 April 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

2. The Application is not competent.

3. The Application is dismissed as an abuse of process.

4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,000.00.

5. No further application for review of the decision made by the Refugee Review Tribunal NO3/47205 made on 3 February 2004 and handed down on 25 February 2004 is to be accepted for filing at any Registry of the Court without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 846 of 2006

SZDCT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 25^th February 2004. It is of course out of time because this application was not filed until 22^nd March 2006. The other reason why the application cannot succeed is because it has already been heard.  It has been heard by the Federal Magistrates Court and an appeal has been heard by the Federal Court. An application for leave to appeal to the High Court of Australia has already been dismissed.

2. The Applicant's application for a protection visa was refused on 6^th August 2003. The Refugee Review Tribunal made a decision to affirm the delegate's decision to refuse a protection visa on 3^rd February 2004 and handed that decision down on 25^th February 2004. The Applicant sought judicial review of that decision of the RRT in the Federal Magistrates Court. On 3^rd December 2004, Raphael FM dismissed the application with costs. The citation to that decision is [2004] FMCA 957.

3. The Applicant then appealed to the Full Court of the Federal Court and on 10^th March 2005 Giles J dismissed the appeal with costs. The citation for that decision is SZDCT v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 329. The Applicant then sought special leave to appeal to the High Court of Australia. On 9^th March 2006, the High Court of Australia dismissed the application with costs. What the Applicant has then done is recommenced his application in the Federal Magistrates Court seeking review of the same decision.

4. The fact is that the application has already been heard and the matter has been decided.  The doctrine of res judicata applies. Apart from the fact that the application is out of time as set out in s.477 of the Migration Act, the application is therefore not competent. It is also an abuse of process. It is seeking to re-litigate a matter that has already been decided. The application therefore cannot succeed and it should be dismissed this morning.

5. I propose to make an order directing that no further application for review of that decision by the Refugee Review Tribunal should be accepted for filing at this Court without leave. I make the following orders.

6. This is an application that should never have been brought to Court because it is an abuse of process.  It is an obvious matter for an order for costs as I have already made clear.

7. I note that the filing fee that he paid on this application was waived.  The waiver of the filing fee is revoked.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  2 May 2006