SZEUK v Minister for Immigration

[2004] FMCA 829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUK v MINISTER FOR IMMIGRATION [2004] FMCA 829

MIGRATION – Application by respondent Minister for summary dismissal of proceedings – where respondent Minister argues that the doctrines of
res judicata, issue estoppel or Anshun estoppel apply – where Minister further argues that the proceedings are vexatious or an abuse of process – whether the application should be dismissed as incompetent – whether applicant should pay costs on an indemnity basis.

SZBXA v MIMIA [2004] FCA 445

Applicant: SZEUK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1821 of 2004

Delivered on: 11 November 2004

Delivered at: Sydney

Hearing date: 11 November 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed as being incompetent.

2. Applicant to pay the respondent’s costs assessed in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1821 of 2004

SZEUK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. I have before me today for decision a notice of objection to competency and a notice of motion seeking the dismissal of an application for judicial review filed by the applicant on 15 June 2004.  The notice of motion alleges that the application should be dismissed on the grounds that the doctrines of res judicata and issue estoppel apply and that these are a complete bar to proceedings; that Anshun estoppel applies and that there are no special circumstances to justify exercising my discretion not to apply that principle; that the proceedings are vexatious and that, finally, the proceedings are an abuse of process.

2. If I find that the proceedings are not competent then I have no jurisdiction to hear them and my lack of jurisdiction would flow through to hearing this notice of motion: SZBXA v MIMIA [2004] FCA 445. In the affidavit of Bernadette Marie Rayment dated 20 July 2004 and filed herein, there is attached a series of documents which establish the following.

   1.On 15 October 2002, the Refugee Review Tribunal handed down a decision on the applicant's claim for a protection (Class XA) visa.  The Tribunal determined to uphold the decision of the delegate not to grant such a visa.

   2.On 8 November 2002, the applicant filed an application for judicial review in the Federal Court which was dismissed after a full hearing by Moore J on 13 March 2003.  On 31 March 2003, the applicant filed a notice of appeal and on 13 August 2003, the full court, constituted by Black CJ, Heerey and Finn JJ, ordered that the appeal be dismissed.  On
   3 September 2003, the applicant filed an application for special leave to appeal to the High Court which he discontinued two days before the hearing on 16 June 2004. 

3. On 15 June 2004, the applicant had filed this application. The decisions of Moore J and the full bench indicate that their Honours considered that the decision of the Tribunal was a privative clause decision. A privative clause decision is subject to subsection 477(1A) of the Migration Act 1958 which requires that an application to this court under s.39B of the Judiciary Act 1903 and s.483A of the Migration Act  must be made within 28 days of the notification of a Tribunal decision.  There is no power in the court to extend this time.  It is clear that the application to the court was made some years after the decision in question and as there is binding authority upon me that the decision itself is a privative clause decision, the application must be incompetent.

4. Having decided this matter, there is no need for me to deal with the other matters raised in the notice of motion.  Indeed it would appear from the decision of Hill J in SZBXA that it would not be appropriate for me to do so.  I dismiss the application as being incompetent. 

   
   

   I order that the applicant pay the respondent's costs. The Minister has asked that these costs be paid to her on an indemnity basis and sought an order for payment in the sum of $3,000. The claim for payment on an indemnity basis relies very heavily on arguments made by the Minister on the notice of motion which, as I have said, I do not believe I am permitted to consider. The applicant must pay the respondent's costs which are assessed in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  16 November 2004