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MIGRATION - Review of RRT decision - summary dismissal - abuse of process - same RRT decision previously the subject of review and order nisi application in High Court.

MZWHW v Minister for Immigration [2004] FMCA 715 (18 October 2004)

MZWHW v Minister for Immigration [2004] FMCA 715 (18 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWHW v MINISTER FOR IMMIGRATION
[2004] FMCA 715




MIGRATION - Review of RRT decision - summary dismissal - abuse of process - same RRT decision previously the subject of review and order nisi application in High Court.




Migration Act 1958

Walton v Gardiner (1993) 177 CLR 378

Dey v Victorian Railways Commission (1948) 78 CLR 62

Applicant:
MZWHW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 555 of 2004




Delivered on:


18 October 2004




Delivered at:


Melbourne




Hearing Date:


18 October 2004




Judgment of:


McInnis FM




REPRESENTATION

Applicant:


In person




Solicitor for the Respondent:


Ms R.A. Hearn-Mackinnon




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application filed 19 May 2004 be dismissed.

(2) The applicant shall pay the respondent's costs fixed in the sum of $2000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 555 of 2004

MZWHW



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. In this matter the respondent by a notice of motion returnable this day has sought an order of the court that the application be dismissed. The application sought to be dismissed is an application filed by the applicant on 19 May 2004 seeking review of a decision of the Refugee Review Tribunal (the RRT) made on 29 January 2001 where the RRT had affirmed a decision to refuse the applicant a protection visa. In its decision the RRT referred to the background material in this matter and the nature of the application before it.

2. By way of background it is useful to note that the applicant, who is a citizen of Sri Lanka, arrived in Australia on 17 August 1998. On 18 September 1998 he lodged an application for a protection class AZ visa with the Department of Immigration and Multicultural Affairs (the department) under the Migration Act 1958 (the Act). On 15 October 1998 a delegate of the minister for immigration and multicultural affairs refused to grant a protection visa and on 27 October 1998 the applicant applied for review of that decision. In the RRT decision, after considering the submissions made on behalf of the applicant, the RRT in its conclusions states:

Having considered the evidence as a whole, the tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the refugee convention as amended by the refugees protocol. Therefore, the applicant does not satisfy the criterion set out in section 36(2) of the Act for a protection visa.

3. In its findings the tribunal further stated the following:

I recognise that the applicant very much wants to remain living in Australia, that he is happy here and that he contributes to the Buddhist community through his musical talents. While this is very understandable, factors such as these have no bearing on whether the applicant is a refugee and so entitled to a protection visa. He is not a person to whom Australia owes protection obligations.

4. The respondent in support of the application for dismissal returnable this day has relied upon and adopted submissions filed on 15 October 2004. The applicant, who is assisted this day by an interpreter, having received that document was not fully aware of its contents and I accept had not had them explained to him by an interpreter. However, the chronology in that material and the submissions have now been brought to his attention and interpreted in an appropriate and, I am satisfied, satisfactory manner.

5. The chronology in many respects is very simple. On 29 January 2001, as indicated, the RRT affirmed the decision to refuse the applicant a protection visa. On 4 May 2001 the applicant filed an application for an order for review in the Federal Court. On 19 July 2001 there was a hearing conducted before Ryan J at which the applicant was represented by counsel. On 21 August 2002 the application for review was dismissed by Ryan J. In his decision, which appears at court book page 75 to 89, his Honour in the conclusion states:

For the reasons which I have endeavoured to explain, I have been unable to conclude that the limited attack which the applicant has mounted on its decision revealed that the tribunal committed any reviewable error of law. Accordingly, the application must be dismissed with costs.

6. There is no dispute in the present case that the decision of the RRT which was dealt with by his Honour Ryan J referred to in the decision delivered by his Honour on 21 August 2002 is the same decision that is currently before this court and which is the subject of the applicant's application filed on 19 May 2004. On 11 September 2002 the applicant filed a notice of appeal to the Full Court of the Federal Court arising out of the decision of his Honour Ryan J. On 20 February 2003 a Full Court of the Federal Court dismissed that appeal. In its decision the Full Court stated:

We have heard what the applicant has said to us today but we see no reason to doubt the conclusion reached by the learned primary judge that there is no error of the decision of the tribunal. The appeal must be dismissed with costs. The appellant must pay the respondent's costs of the appeal.

7. The applicant then made application on 18 March 2003 for an order nisi which was filed in the High Court that day. The matter was remitted to the Federal Court on 30 January 2004. On 3 May 2004 the application for an order nisi was refused before Heerey J. I am satisfied and accept that on that day the applicant sought an adjournment of the proceedings and did not otherwise participate fully in those proceedings. As indicated, the matter then became the subject of an application before this court filed on 19 May 2004. No appeal was lodged in relation to the decision of Heerey J on 3 May 2004.

8. The respondent submits that the application before the court now seeks review of the RRT decision which was the same as the decision before Ryan J who had dismissed the application and on appeal that decision was upheld. It is submitted that in the present case, the applicant having not sought to appeal from the decision of Heerey J in the matter remitted to the Federal Court by the High Court, effectively it means that in the present case the principles of res judicata and issue estoppel apply and that the applicant is now precluded or estopped from raising any cause of action considered or which was the subject of findings by Ryan J and the Full Court on appeal. The proceedings, it is submitted, raised the same cause of action as in the previous proceedings before Ryan J.

9. It is not necessary for me to refer to the authorities recited in the respondent's outline of submissions. It is clear to me that in the present case the application before this court does not differ at all from the substance of the application previously dealt with by Ryan J and which in turn was dealt with by way of appeal to the Full Court of the Federal Court. I am satisfied that in the circumstances where the application before this court simply seeks to relitigate matters which have already been the subject of due process, it is appropriate that I should find, as

I do find, that this is effectively an abuse of process and that the application should be dismissed.

10. I apply and adopt the principles of law set out in the High Court decision of Walton v Gardiner (1993) 177 CLR 378 contains the following in the joint decision of their Honours Mason CJ, Deane and Dawson JJ where their Honours at page 393 state the following:

Proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Yet again proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuation would be unjustifiable, vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

11. In my view, it is clear that in the present case the RRT decision which is the subject of the application before this court is identical to the RRT decision that was before Ryan J and ultimately before the Full Court of the Federal Court on appeal from his Honour's decision. It is clear to me that the issue has been fully and appropriately agitated.

12. Before the court this day the applicant sought from the court a further indulgence that he be granted time so that he could seek to obtain legal advice and obtain sufficient money to obtain that advice. In the circumstances where an applicant is unrepresented the court is often willing to permit time to be granted where it is considered that time should be given to obtain legal advice and assistance or to perhaps raise submissions which were not advanced previously. In the present case, however, it is noted the applicant was represented in the proceedings before Ryan J. It is clear to me in the present case that the application is so hopeless that to extend any further time or indulgence to the applicant would be inappropriate.

13. I am aware of the significance of summary dismissal and otherwise apply and adopt the decision of the High Court in Dey v Victorian Railways Commission (1948) 78 CLR 62 and in particular I adopt and apply what Dixon J states at page 91 where his Honour refers to the following:

The case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.

.... once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

14. In the present case, applying the words of Dixon J in the decision of Dey v Victorian Railways Commission, it is my firm view that in this particular instance it is extremely clear that this is an abuse of process as it is equally clear to me that in this case there is indeed sufficient to justify the court summarily intervening and dismissing the application. It is clear to me in this case that there is no real question to be determined. I otherwise accept that the principles of res judicata to the extent that I need to rely upon them apply in this case where the matter has been agitated and the subject of adjudication as described in the chronology. It follows that the application must be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 18 October 2004
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