FEDERAL COURT OF AUSTRALIA

MZWVF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1173

MIGRATION – leave to appeal – whether any prospect of successful appeal – previous challenges to same decision of tribunal

Migration Act 1958 (Cth) s 91X

Federal Magistrates Court Rules rr 13.10, 13.03A, 13.03

NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 840 cited

NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243 cited

MZWVF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 494 of 2005

GRAY J

8 AUGUST 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     By application, filed in this Court on 9 May 2005, the applicant seeks leave to appeal from a judgment of the Federal Magistrates Court, given on 4 May 2005.

2                     The history of the proceeding is as follows.  On 14 May 2001, the applicant applied for a protection visa.  On 20 June 2001, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’) refused to grant a protection visa.  The applicant applied to the Refugee Review Tribunal for review of that decision.  He was unsuccessful in that application.  On 25 March 2003, the Refugee Review Tribunal affirmed the decision of the Minister’s delegate. 

3                     The applicant then applied to this Court, on 22 April 2003, by filing an application in the New South Wales District Registry, which became proceeding no N 499 of 2003, and was entitled, in accordance with s 91X of the Migration Act 1958 (Cth), ‘NAOL v Minister for Immigration & Multicultural & Indigenous Affairs’.  On 30 July 2003, Jacobson J dismissed that application on the merits.  The judgment is published as NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 840.  The applicant appealed to the Full Court from that judgment.  On 3 November 2003, the Full Court dismissed the appeal.  The judgment of the Full Court is published as NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243.

4                     The applicant then sought special leave to appeal to the High Court of Australia, in proceeding no S 583 of 2003.  On 30 November 2004, the High Court dismissed that application for special leave to appeal.

5                     On 23 December 2004, the applicant filed in the Federal Magistrates Court at Melbourne a further application relating to the same decision of the Refugee Review Tribunal.  The respondent, the Minister, filed a notice of motion seeking summary dismissal of that application, on the basis of the previous applications to overturn the decision of the Refugee Review Tribunal.  On 4 May 2005, the Federal Magistrates Court made an order dismissing the proceeding, and also an order that the applicant not file any further application in relation to the decision of the Refugee Review Tribunal dated 25 March 2003 without first obtaining the leave of the Court.  There was also an order for costs, fixed at $2395.

6                     The order of the Federal Magistrates Court makes it plain that the proceeding was dismissed pursuant to rr 13.10, 13.03A and 13.03 of the Federal Magistrates Court Rules.  Rule 13.10 empowers the Court to dismiss a proceeding in which no reasonable cause of action is disclosed, a proceeding which is frivolous or vexatious, or a proceeding which is an abuse of the process of the Court.  Rule 13.03 empowers the Court to dismiss a proceeding if a party fails to take a step required by the rules or to comply with an order of the Court.  Rule 13.03A empowers the Court to dismiss a proceeding if the applicant is absent from a hearing.

7                     So far as the order was based on default of appearance of the applicant, he has given me today an explanation for his absence.  He says that his mother was in some difficulties, his mind was concentrated on that question and he missed the hearing.

8                     Even accepting that, the applicant is in considerable difficulty.  It seems absolutely clear that his attempt to apply to the Federal Magistrates Court in respect of the decision of the Refugee Review Tribunal was bound to fail, because of the doctrine of res judicata.  Res judicata is the doctrine that requires that a person have one proceeding in respect of one cause of action, and not a multitude.  A party is expected to put to a court all that he or she can put with respect to the cause of action.  In the present circumstances, the applicant had rights of administrative review in respect of the decision of the Refugee Review Tribunal.  He exercised those rights by applying to this Court and was unsuccessful in overturning the decision of the tribunal.  It is quite clear that it was not open to him to commence another proceeding, seeking to overturn the decision of the tribunal, whether that other proceeding was on the same or on different grounds.  It was simply not open to the applicant to have a second attempt to overturn the decision of the tribunal.

9                     It follows that the Federal Magistrates Court was correct to dismiss the application to it pursuant to r 13.10 of its rules.  The proceeding was properly classified as frivolous or vexatious, or as an abuse of the process of the court, because it had no prospect of success.

10                  The same must be said for the applicant’s attempt to appeal from the judgment of the Federal Magistrates Court.  Any appeal has absolutely no prospect of success.  It is bound to fail because of the doctrine of res judicata.  As I have said, the applicant has had his one attempt at overturning the decision of the Refugee Review Tribunal.  He cannot be permitted to have another.  Because any appeal would be without any prospect of success, leave to appeal should not be granted.  It follows from this that I should dismiss the application for leave to appeal.

11                  I propose to make the usual order that costs follow the event.

12                  The orders I make will be:

1.         The application for leave to appeal be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

Associate:

Dated:              31 August 2005