SZFIL v Minister for Immigration

[2006] FMCA 1391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIL v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1391

MIGRATION – Where application previously the subject of judicial review − whether application prevented from being heard by the doctrine of res judicata.

SZFIL v Minister for Immigration [2005] FCA 1369

Applicant: SZFIL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3587 OF 2005

Judgment of: Raphael FM

Hearing date: 13 September 2006

Date of last submission: 13 September 2006

Delivered at: Sydney

Delivered on: 13 September 2006

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application be dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $950.00.

3. No further application be accepted from this applicant in respect of the decision of the Refugee Review Tribunal dated 27 October 2002 except with leave of court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3587 of 2005

SZFIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me a notice of motion by way of a further amended notice of motion filed on 5 September 2006, seeking orders that I should dismiss the substantive application filed by the applicant on 7 December 2005 on the grounds of res judicata, issue estoppel, Anshun estoppel or abuse of process.

2. The notice of motion is supported by an affidavit of Nicola Johnson, sworn on 23 December 2005, which contains a number of decisions of the various courts to whom this applicant has petitioned, together with a helpful chronology.  As the affidavit is part of the court papers there is no need for me to rehearse that chronology in detail.  Suffice to say that the decision of the Refugee Review Tribunal dated 27 October 2002 has been the subject of applications to the Federal Court in South Australia, the Federal Magistrates Court in Sydney and an appeal to the Federal Court, also in Sydney. 

3. The last dismissal of the applicant’s claim for review was effected on 15 September 2005 by virtue of the orders of Tamberlin J in SZFIL v Minister for Immigration [2005] FCA 1369, where His Honour said at [7]:

   “The grounds of appeal set out in the notice of appeal filed on 18 July 2005 do not raise any substantial issue having regard to the way in which the Tribunal and the Federal Magistrate dealt with the matter.  The substance of the claims go to questions of fact and degree which are within the jurisdiction of the Federal Magistrate and no jurisdictional error has been shown in the decision of the Tribunal.

   In the circumstances, I am satisfied that this is a case in which there has been no error of principle or law demonstrated in the reasoning of the Federal Magistrate or of the Tribunal and, accordingly, I dismiss this appeal with costs.”

4. The application which was filed in this court following that decision on 7 December 2005 contains no grounds that I can see and possibly should have been refused for filing on that basis. In any event it is clear to me that the application is not one that can be heard because of the doctrine of res judicata, which prevents the continual rehearing of disputes that have already been decided.  This dispute, being the allegation of the applicant that the Tribunal erred in law in the manner in which it came to its decision, has been decided and I am not permitted to reopen it.  Any such reopening would be an abuse of the processes of this court, amongst which is the principle that litigation should be finalised.

5. I dismiss the substantive application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $950.00 and I order that no further application be accepted from this applicant in respect of the decision of the Refugee Review Tribunal dated 22 October 2002, except with the leave of the court. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: