MZXBN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCA 65 (3 February 2006)

Last Updated: 9 February 2006

FEDERAL COURT OF AUSTRALIA

MZXBN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCA 65

MZXBN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1454 of 2005



RYAN J
3 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1454 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	MZXBN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	3 FEBRUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The name of the respondent be changed to "Minister for Immigration and Multicultural Affairs".

2. The appeal be dismissed as incompetent.

3. The appellant pay the respondent’s costs of the motion on notice dated 1 December 2005 and of this day, such costs being fixed in the amount of $1,000.00.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1454 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	MZXBN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	3 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 There is before the Court a notice of a purported appeal from a decision of the Federal Magistrates Court of 28 October 2005. The Federal Magistrates Court on that occasion was constituted by his Honour Connolly FM. The learned Federal Magistrate reviewed the history of attempts by the present appellant to obtain a review of a decision of the Refugee Review Tribunal ("the Tribunal") which had apparently been published on 4 June 2004. In [3] of his reasons for decision, the learned Magistrate recites;

‘On 15 May 2002 the applicant applied for a protection visa and on 23 August 2002 that application was refused by the delegate of the Minister of Immigration & Multicultural & Indigenous Affairs. On 11 May 2004 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate [the reasons for that affirmation by the Tribunal were apparently published on 4 June 2004]. Then on 29 June 2004 the applicant applied to this Court for a review of the Tribunal's decision (being MLG 852 of 2004) ("the first application"). That application was amended on 9 December 2004 and was dismissed by O'Dwyer FM on 20 January 2005. The applicant then appealed to the Federal Court of Australia on 22 February 2005. The application was dismissed by Marshall J, sitting as the Full Court of the Federal Court, on 15 March 2005. The applicant sought leave to appeal to the High Court of Australia on 7 April 2005, and that application was refused on 5 August 2005. As I have already indicated, the applicant then sought to repeat the whole process by filing an application in this Court on 23 August 2005.’

2 The learned Federal Magistrate concluded that the current application which, as he indicated in the passage just quoted, had been filed on 23 August 2005 was incompetent in that it had been filed outside the time specified in s 477 of the Migration Act 1958 (Cth).

3 His Honour then considered the application of the doctrine res judicata, and whether the applicant before him had demonstrated any alternative basis for review. He concluded that the proceedings then before the Federal Magistrates Court were barred by the doctrine of res judicata or by the complementary principle known as Anshun estoppel, which derives its name from the High Court authority Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. The learned Federal Magistrate concluded that the Anshun principle has application to proceedings in which an applicant seeks judicial review of an administrative decision, deriving support for that proposition from Minister for Immigration v Karas (1992) 42 FCR 406.

4 On that further or alternative basis, he concluded that the application for a further review could not proceed and, indeed, concluded by characterising it as an abuse of the Court’s process. Despite the cogency of his Honour’s reasoning, the purported appellant, on 14 November 2005, filed in this Court a notice of appeal from the judgment of the Federal Magistrates Court of 26 October 2005. The grounds set out in that notice of appeal are:

‘2A There was an error of law in the judge's decision constituting jurisdictional error.

3. The Federal Magistrate should have found that both these findings did not have the necessary evidentiary basis and as a consequence the decision of the RRT was without jurisdiction.
4. The Federal Magistrate erred in finding that the errors in the fact finding process of the RRT did not amount to failure to exercise jurisdiction and/or that other findings in the decision overcame the decision's shortcomings.
5. The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction or failed to exercise jurisdiction.’

5 The mere recital of those grounds is sufficient to indicate that they evince a fundamental misconception about what Connolly FM decided on 26 October 2005. As will be apparent from the summary which I have undertaken of the learned Magistrate’s reasons, he did not, in terms, deal with the reasoning of the Tribunal or the correctness of the earlier decisions which rejected previous attacks made by the appellant on the foundational decision of the Tribunal which, as I said, was apparently published on 4 June 2004.

6 After the notice of purported appeal had been filed in this Court, the respondent filed a Notice of Objection to Competency on 18 November 2005. It was then indicated to the appellant in a letter from the respondent's solicitor, dated 25 November 2005, that:

‘At the directions hearing on 19 December 2005 at 9.30 am, we will apply to have this matter dismissed either on the basis that the appeal is not competent, or alternatively, on the basis that an extension of time for leave to appeal should not be granted and leave to appeal should not be granted. We also contend that your application is an abuse of the Court’s process.’

7 There was, in fact, no directions hearing on 19 December but the appellant was advised by a notice of listing, dated 23 December 2005, that "the Notice of Motion (Objection to Competency)" had "been listed before the Court" today, 3 February 2006 "at 11.00 am". Despite that notification, there has been no appearance by the appellant to resist the motion objecting to the competency of his appeal. In the circumstances, I am completely satisfied that the appeal is incompetent. It is also susceptible to dismissal for the further or alternative reasons enunciated by Connolly FM in his reasons published on 28 October 2005. Accordingly, the appeal will be dismissed as incompetent.

8 I shall order that the appellant pay the respondent’s costs of the appeal, including the costs of the motion on notice dated 1 December 2005 and of this day, such costs being fixed in the sum of $1000.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:
Dated: 3 February 2006

Counsel for the Appellant:	The applicant did not appear
Counsel for the Respondent:	Mr Bryan Wee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2006
Date of Judgment:	3 February 2006