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MIGRATION - Review of Refugee Review Tribunal affirming a delegate's refusal of a protection visa.

PRACTICE AND PROCEDURE - Res Judicata and anshun estoppel - decision under review previously reviewed by the Federal Court - application dismissed.

SZADX v Minister for Immigration [2003] FMCA 63 (21 February 2003)

SZADX v Minister for Immigration [2003] FMCA 63 (21 February 2003)
Last Updated: 17 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADX v MINISTER FOR IMMIGRATION
[2003] FMCA 63



MIGRATION - Review of Refugee Review Tribunal affirming a delegate's refusal of a protection visa.

PRACTICE AND PROCEDURE - Res Judicata and anshun estoppel - decision under review previously reviewed by the Federal Court - application dismissed.



Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:
SZADX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ148 of 2003



Delivered on:


21 February 2003



Delivered at:


Sydney



Hearing date:


21 February 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant in person






Counsel for the Respondent:


Ms S Lloyd



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $1,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ148 of 2003

SZADX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application filed in this Court on 11 February 2003 ostensibly seeking to review a protection visa decision. On its face, the application purports to challenge a decision of the Refugee Review Tribunal ("the RRT"). A further form of application was received by the Court by facsimile on 17 February 2003. That document has not been accepted for filing. On its face, that document purports to seek relief to prevent the applicant being removed from Australia pending the hearing of the application filed on 11 February 2003.

2. The application filed on 11 February 2003 was listed for hearing on 26 February 2003. It appears that information came to the attention of the applicant that indicated that he may be removed from Australia before that date. The matter was listed for hearing at 12.00 noon today with a view to consideration of the issues generally. After hearing from the applicant, I decided that the appropriate course was to deal now with his application filed on 11 February 2003. This obviates the need to deal with his second form of application.

3. Mr Lloyd, who appeared on behalf of the respondent Minister, filed in court an affidavit of Susan Goodman. I accepted that affidavit into evidence. That affidavit and exhibit R1, which was tendered by Mr Lloyd, establishes the following. On 16 August 2001 the applicant sought review of a decision of a delegate of the Minister to refuse him a protection visa. On 16 October 2001 the RRT affirmed the decision of the delegate. I accept that that is the only decision of the RRT relevant to these proceedings.

4. On 26 October 2001 the applicant sought review of the RRT decision in the Federal Court in the Victorian District Registry. On 14 February 2002 the Federal Court affirmed the RRT decision. The applicant appealed to the Full Federal Court against that decision. On 15 November 2002 the Full Federal Court dismissed the appeal. It is apparent from an examination of the reasons for decision of the Federal Court, both at first instance and in the Full Court, that the Court's decisions are unaffected by the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2. No application for special leave to appeal to the High Court has been filed. Neither has the applicant made any further application for a protection visa.

5. In the light of these facts, it is clear to me that I must dismiss the application. Obviously, the applicant has no right to appeal to this Court from the decision of the Full Federal Court. Following the decision of the Full Federal Court, the principles of res judicata and/or anshun estoppel would apply to any further proceedings in this Court.

6. Accordingly, I dismiss the application.

7. On the question of costs, Mr Lloyd has sought an order for costs. He has submitted that costs in the order of $3,300 would be appropriate. The applicant has told me that he has no means to pay a costs order. Nevertheless, I am satisfied that as the Minister has been wholly successful on the application he is entitled to an order for costs. Some preparation has been required of the Minister's solicitors for this hearing. In addition, it was reasonable and appropriate for the Minister to be represented by counsel at today's hearing.

8. Nevertheless, the amount of preparation has been limited and it was in essence only necessary for Mr Lloyd to satisfy me that there was nothing for this Court to do in relation to the application. In the circumstances, in my view, an order for costs in the sum of $1,500 is adequate. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 March 2003
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