S307/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 650

FEDERAL COURT OF AUSTRALIA

S307/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 650

MIGRATION – application for review of decision of Refugee Review Tribunal – doctrine of res judicata Held: the applicationis barred by the doctrine of res judicata, as it seeks review of a Tribunal decision that was the subject of a previous judicial review application by the applicants and the facts giving rise to the right of review and the grounds of review are the same Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to Blair v Curren (1939) 62 CLR 464 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406referred to S307/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 2454 OF 2003 TAMBERLIN J SYDNEY 30 MAY 2006

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2454 OF 2003

BETWEEN: S307/2003

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 30 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi is dismissed. 2. The applicant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2454 OF 2003

BETWEEN: S307/2003

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: <> MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

background 1 The two applicants, a mother ("the applicant") and her son, are citizens of India. They arrived in Australia on 18 July 1997 and lodged a combined application for protection visas with the Department of Immigration and Multicultural Affairs on 24 December 1997. On 8 April 1998, the applications were refused by a delegate of the Minister. The applicants sought review of that decision before the Refugee Review Tribunal ("the Tribunal") on 4 May 1998. On 27 March 2000, the Tribunalaffirmed the decision of the delegate. 2 The applicant then applied to the Federal Court for judicial review of the decision of the Tribunal. That application was heard by Moore J on 7 September 2000. Both the applicant and the respondent were represented by counsel at the hearing. On 5 October 2000, Moore J dismissed the application and ordered the applicant to pay the costs of the respondent. 3 On 17 June 2003, the applicant filed an application in the High Court of Australia for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of the decision of the Tribunal. The applicant supported her application for an order nisi by an affidavit sworn by her on 16 June 2003. 4 The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal (2002) 190 ALR 601. 5 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi. Written submissions were filed by the applicant on 10 December 2004. 6 I propose to deal with this application on the papers.