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

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) 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.