MZWEC v Minister for Immigration and Citizenship [2008] FCA 184 (29 February 2008)

Last Updated: 5 March 2008

FEDERAL COURT OF AUSTRALIA

MZWEC v Minister for Immigration and Citizenship [2008] FCA 184

MZWEC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 967 OF 2007

SUNDBERG J
29 FEBRUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 967 OF 2007

BETWEEN:	MZWEC Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent’s costs of the application.

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 967 OF 2007

BETWEEN:	MZWEC Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SUNDBERG J
DATE:	29 FEBRUARY 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for leave to appeal Riethmuller FM’s decision to summarily dismiss an application for judicial review of a decision of the Refugee Review Tribunal dated 28 November 2001. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.

2 The applicant is a citizen of Sri Lanka who first entered Australia on 2 October 1997. On 29 October 1997 he filed an application for a protection (Class AZ) visa, claiming to have a well-founded fear of persecution from a number of political parties due to his past activities as an intelligence officer in the Sri Lankan Army.

3 The Tribunal accepted the applicant’s evidence that his father was Tamil and also that he was employed in the Sri Lankan army as an intelligence officer. However it concluded that he did not have a well founded fear of persecution under the Refugees Convention, finding that he was not a credible witness as his evidence was inconsistent with country information, incongruous, vague, far-fetched and unconvincing in significant respects.

4 The Federal Magistrate dismissed the application for review of the Tribunal’s decision on the ground that the Court did not have jurisdiction to deal with the matter as it was time barred. His Honour said at [6] and [7]:

This case is brought many years after the decision was handed down. There is a time limit on bringing applications in the Federal Magistrates Court that is set by s.477 of the Migration Act 1958.

Under that section, an application must be brought within 28 days of the actual notification of the decision and the court has power to grant leave to extend that 28-day time limit up to a maximum of 84 days from the actual notification of the decision. Even if I were to exercise all of the powers available to me under that Act with respect to time limits, this application would remain several years out of time. As a result, in this court I simply have no jurisdiction to deal with the present application.

5 Noting that the matter has previously been subject to judicial review in the Federal Magistrates Court and the Federal Court, his Honour added at [11]:

... even if I do have jurisdiction, on the material, it appears to be barred as a result of res judicata or issue estoppel.

6 The applicant purported to file a notice of appeal on 25 October 2007 claiming that the Tribunal’s decision and the Magistrate’s decision were "made without jurisdiction or is affected by an error of jurisdiction". He also claimed that the Magistrate was wrong in refusing to grant him an extension of time "and by accepting the decision of the Tribunal". The Magistrate’s decision was interlocutory, and the applicant requires leave to appeal. I will treat him as applying for leave.

7 Section 477 of the Migration Act 1958 provides in part as follows:

(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

8 The primary ground for the Magistrate’s decision was that there was no jurisdiction to hear the matter as it was filed more than 84 days after the applicant was notified of the Tribunal’s decision. However, in the absence of evidence that the applicant was given by hand a copy of the Tribunal’s decision in accordance with s 441A(2) of the Act, the time limits in s 477 have not begun to run, and the application was not filed out of time: Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 at [46]- [47]. The first respondent accepts that the Magistrate’s decision is in this respect attended by doubt for leave to appeal purposes.

9 However, as indicated earlier, the Magistrate said that even if he had jurisdiction to deal with the application for review, it would be barred "as a result of the principles of res judicata and estoppel". The grounds of appeal and the particulars thereof in the purported notice of appeal in this Court are the same as those unsuccessfully raised in the Federal Magistrates Court in 2004: MZWEC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1496. On appeal from that decision the applicant relied on the same grounds and particulars. The appeal was dismissed: MZWEC v Minister for Immigration and Multicultural Affairs [2006] FCA 1696. In the circumstances, the Magistrate was correct in upholding the first respondent’s submission that the proceeding was an abuse of process because it was an attempt to relitigate a matter that had already been the subject of litigation in the Federal Magistrates Court and the subject of an unsuccessful appeal to this Court. See Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393. There is no prospect of success on an appeal if leave to appeal were granted.

10 Accordingly, the application for leave to appeal is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 29 February 2008

The applicant appeared in person.

Counsel for the First Respondent:
Solicitors for the First Respondent:	Clayton Utz
Date of Hearing:	26 February 2008
Date of Judgment:	29 February 2008