Applicant S1307 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 201 (6 March 2006)

Last Updated: 13 March 2006

FEDERAL COURT OF AUSTRALIA

Applicant S1307 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 201

APPLICANT S1307 OF 2003 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 2470 OF 2005
6 MARCH 2006
BENNETT J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2470 OF 2005

BETWEEN:	APPLICANT S1307 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	6 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. leave to appeal from a decision of the Federal Magistrates Court of 17 November 2005 is refused.

2. the applicant pay the first respondent's costs in the sum of $500.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2470 OF 2005

BETWEEN:	APPLICANT S1307 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	6 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant applies for leave to appeal from a decision of Federal Magistrate Lloyd-Jones of 17 November 2005. The Federal Magistrate set out the litigation history with respect to this matter at [5] of his Honour’s reasons;

‘The relevant litigation history of the applicant was set out in the affidavit of Ms Johnson and I adopt paragraphs 4-20 of that affidavit for the purpose of this judgment:
[4] On 29 April 1998, the RRT constituted by Chris Keher handed down a decision to affirm the decision of a delegate of the respondent to refuse the applicant a protection visa.
[5] On 27 May 1998, the applicant lodged an application for judicial review in the Federal Court of Australia, New South Wales District Registry to review the RRT decision handed down on
29 April 1998. Those proceedings were allocated Federal Court proceedings number N501 of 1998.
[6] On 17 November 1998, the Honourable Justice O’Connor ordered that the application be dismissed with costs.
[7] On 10 September 1998, the applicant through his solicitor Adrian Joel lodged an amended statement of claim and additional schedule of represented parties in the High Court of Australia, Sydney Registry in proceedings S97 of 1998. Those proceedings involved a class action of Herijanto against the RRT. The applicant’s name is listed on page 6 of the additional schedule of represented parties.
[8] On 25 September 2001, the Honourable Justice Gaudron ordered that the represented parties in the Herijanto proceedings be inserted as represented parties in the proceedings of Muin v RRT, proceedings S36 of 1999.
[9] On 25 November 2002, the Honourable Justice Gaudron made several orders in relation to High Court proceedings S89 of 1999. Order 2 of her Honour’s orders stated that leave be granted to any other person named in the schedule of the statement of claim to file an application seeking an order nisi in relation to the decision of the RRT in relation to that individual on or before 1 June 2003. Order 3 of her Honour’s orders stated that any application filed would be remitted instanter to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s.44 of the Judiciary Act 1903 (Cth).
[10] On 29 May 2003, the applicant filed a draft order nisi and affidavit of Adrian Joel annexing copies of the delegate’s decision and the RRT decision of 1 June 2000 in the High Court of Australia, Sydney Office of the Registry. These proceedings were given the proceedings number S1307 of 2003.
[11] The proceedings remitted to the Federal Court of Australia, New South Wales District Registry were given the proceedings number N1337 of 2003.
[12] On 20 February 2004, the Honourable Justice Emmett made orders refusing the application for an order nisi.
[13] On 18 March 2004, the applicant filed an application for judicial review in the Federal Magistrates Court, at Sydney, to review the Tribunal’s decision handed down on 29 April 1998. The proceedings were allocated Federal Magistrates Court proceedings number SZ798 of 2004.
[14] On 29 July 2004, the respondent filed and served a Notice of Motion for summary dismissal in proceedings SZ798 of 2004. The respondent’s Notice of Motion was listed for hearing on
29 November 2004.
[15] On 29 November 2004, the Honourable Federal Magistrate Driver ordered that leave be granted for the applicant’s notice of discontinuance to be filed in Court and that the applicant pay the respondent’s costs in the sum of $3,000.00.
[16] On 30 November 2004, the applicant filed an application for leave to appeal and extension of time to file and serve a notice of appeal in the Federal Court of Australia, New South Wales District Registry, in respect of the orders and judgment of the Honourable Justice Emmett dated 20 February 2004. The proceedings were allocated Federal Court proceedings number NSD1773 of 2004.
[17] On 7 February 2005, the Honourable Justice Hely ordered that the application for leave to appeal and extension of time be dismissed with costs.
[18] On 7 March 2005, the applicant filed an application for special leave to appeal from the orders and judgment of the Honourable Justice Hely in the High Court of Australia, Sydney Office of the Registry. The proceedings were allocated High Court proceedings number S80 of 2005.
[19] On 10 August 2005, the Honourable Justices Hayne and Callinan ordered that the application for special leave to appeal be dismissed.
[20] On 7 September 2005, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia. Those proceedings were allocated Federal Magistrates Court proceedings number SYG2507 of 2005.’

That chronology records that the decision of the Refugee Review Tribunal (‘the Tribunal’) of 29 April 1998 has already been the subject of judicial review in the Federal Court. Despite that, the applicant has applied again for judicial review of the same Tribunal decision. The applicant has had ample opportunity to contest that decision.

2 In the affidavit in support of the application for leave to appeal the applicant simply asserts that he seeks further judicial review on the grounds that the Tribunal failed to accord him natural justice and failed to exercise its jurisdiction under the Migration Act 1958 (Cth). No particulars have been provided and no basis for error on the part of Lloyd-Jones FM has been advanced.

3 The applicant appeared before me this morning assisted by an interpreter. He also demonstrated a proficiency in English. When asked what he wished to say in support of his application he asserted that he had been denied natural justice at all stages of the proceedings from the Tribunal through to the Federal Court. The applicant was unable to give any particulars of that denial of natural justice except for an assertion that the Tribunal did not believe him. On its face, that assertion seems to amount to a complaint that the Tribunal did not accept his version of the facts. That is not a matter that this Court can inquire into. I note that in the Federal Magistrate's decision his Honour also referred to the absence of particulars in the grounds of the application before him.

4 His Honour accepted the Minister’s submission that the pattern of the litigation history was sufficient to support a finding that the application was an abuse of process. The Minister submitted that an inference could be drawn that the application had been filed for the collateral purpose of extending the applicant's stay in Australia and not for the legitimate purpose of seeking judicial review. As his Honour noted, this was the sixth attempt to seek review of the same Tribunal decision. His Honour dismissed the application as an abuse of process and held that the doctrines of res judicata, issue estoppel and Ashun estoppel applied.

5 I see no basis for error on the part of the Federal Magistrate. Further, nothing has been put to me to demonstrate that there is an arguable ground of appeal relevant to the Tribunal decision.

6 In my opinion the appeal is doomed to fail and leave to appeal from the decision of his Honour is refused. The first respondent has adduced evidence of her costs that are in excess of the sum claimed. I order the applicant to pay the first respondent's costs in the sum claimed of $500.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 6 March 2006

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	March 6 2006
Date of Judgment:	March 6 2006