FEDERAL COURT OF AUSTRALIA MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 MIGRATION – appeal – estoppel – abuse of process – whether final or interlocutory decision of Federal Magistrates Court Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 - applied MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 446 - applied MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 - distinguished MZWZL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1055 OF 2005 MZWZS AND MZWZT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1056 of 2005 MERKEL J 18 OCTOBER 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY BETWEEN: VID 1055 of 2005 MZWZL APPELLANT VID 1056 of 2005 MZWZS AND MZWZT APPELLANT AND: Minister for Immigration and Multicultural and Indigenous Affairs FIRST RESPONDENT Refugee Review Tribunal SECOND RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 18 OCTOBER 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeals be dismissed. 2. The appellants pay the costs of the respondents of and incidental to the appeals, save for the costs of the first respondent's objection to competency filed on 30 September 2005. 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 BETWEEN: VID 1055 of 2005 MZWZL APPELLANT VID 1056 of 2005 MZWZS AND MZWZT APPELLANT AND: Minister for Immigration and Multicultural and Indigenous Affairs FIRST RESPONDENT Refugee Review Tribunal SECOND RESPONDENT JUDGE: MERKEL J DATE: 18 OCTOBER 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 These proceedings are two related appeals from a single judgment of the Federal Magistrates Court ('FMC') of 16 August 2005 dismissing the appellants' applications for review on the basis of Anshun estoppel or abuse of process. 2 The three appellants, who are citizens of Sri Lanka, applied for protection visas claiming that they are refugees. The two appellants in VID 1056 of 2005 are the wife and child of the appellant in VID 1055 of 2005. A delegate of the first respondent refused their applications and the Refugee Review Tribunal ('the RRT') affirmed that refusal. 3 On 27 May 2003, the appellants filed an application in this Court for an order nisi. That application was transferred to, and dismissed by, the FMC on 27 June 2004. The appellants appealed to this Court and, following the dismissal of their appeals by Marshall J on 15 December 2004, they applied, unsuccessfully, to the High Court for special leave to appeal. The application for special leave was refused on the ground that 'the reasons of the courts below do not disclose any errors of law.' 4 The appellants had legal representation in their applications to the FMC and the Federal Court. 5 On 11 May 2004, the appellants filed new applications for review in the FMC ('the second FMC application'). Those applications were dismissed on 16 August 2005. The appellants now appeal to the Court against the dismissal of the second FMC application. 6 The grounds of appeal in each proceeding were almost identical. They read as follows: '1. I disagree with the decision of the Federal Magistrate dated 16th Aug 2005. And believe that the decision was made with an error of law. 2. I believe that they Federal Magistrate did not consider my case probably and made his decision against me. I am a tamil from north of Sri Lanka [this last sentence only appears in the notice of appeal in VID 1055 of 2005]. 3. The Federal Magistrate only consider the respondents argument and never consider my claims. I believe that this decision was breach of natural justice or bias.' 7 The FMC judgment included the following passages: 'The applicants lodged this application on 11 May 2005 in the Federal Magistrates Court. The application says: 1. I disagree with the decision of the Refugee Review Tribunal dated 10th April 2003. The tribunal failed to consider my case on claims properly. 2. The Tribunal to fail to consider the motive for the harm [unintelligible] on me was because of political opinion or imputed to me… 3. The decision of the tribunal was made with error of law and breach of natural justice. These are general grounds which are largely taken up by the last proceedings. … On the material before me today I see no basis for them to have an opportunity to again litigate a case that has already been litigated and lost in this court. To that extent it appears to me that there is at least an Anshun estoppel precluding further applications of this type and if I be wrong in that regard, it would nonetheless be an abuse of the process of the court to commence litigating this case again after a judgment has issued from this court and been the subject of appeals.' 8 The FMC's reference to there being 'at least' an Anshun estoppel appears to be a reference to the fact that the appellants did not raise any issue that had not been determined in the previous application, and were therefore estopped from bringing the present application because the substantive issues the subject of the application had been previously determined by the FMC. 9 The first respondent has filed notices of objection to competency in each proceeding contending that the FMC judgment in respect of the second FMC application was an interlocutory judgment, appeal from which requires leave of the Court which must be applied for within 21 days after judgment. Further, the first respondent contends that even if the FMC judgment was final, the appeals should be dismissed because the FMC was correct in dismissing the proceedings on the ground of Anshun estoppel and abuse of process. 10 The appellant parents filed a written submission at the hearing but were unable to advance any other arguments in support of their appeals. Most significantly, they were not able to provide any reason why the decision of the FMC was attended by error. The written submission raised issues that appear to have been rejected previously but, more importantly, do not warrant a finding of any ground of error on the part of the FMC. 11 The first respondent correctly accepted in her written submissions that a decision dismissing a proceeding on the grounds of estoppel and res judicata is a final judgment: see Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 at 38; MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 446 at [6]. However, she submits that: 'the decision that is the subject of this appeal is not a final decision because (per MZWHN) Riethmuller FM had identified an alternative basis for summary dismissal, namely that on the material before him, there was no basis for the matter to be relitigated.' 12 In MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 ('MZWHN'), Crennan J found, at [8]-[10], that a Federal Magistrates Court decision dismissing an application for review on the ground of abuse of process was an interlocutory decision, notwithstanding that the Federal Magistrate identified an alternative ground of dismissal which, had it been the sole ground of dismissal, would have resulted in the judgment being final. 13 In the present case, the ground for dismissing the application was 'at least Anshun estoppel'. The abuse of process was merely an alternative basis if the FMC was in error in respect of Anshun estoppel. Thus, the circumstances of the present case differed from those in MZWHN in which abuse of process was identified as the basis for the dismissal of the application. Accordingly, I regard the appeal as competent. 14 I am not satisfied that there was any error in the FMC's decision. Accordingly, the appeal is to be dismissed with costs which are not to include the costs of the objection to competency. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 18 October 2005 For the Appellants: The Appellants appeared in person. Solicitor appearing for the Respondents: T Mosby Solicitor for the Respondent: Clayton Utz Date of Hearing: 18 October 2005 Date of Judgment: 18 October 2005