FEDERAL COURT OF AUSTRALIA MZXKW v Minister for Immigration and Citizenship [2007] FCA 908 MZXKW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL VID 1285 OF 2006 BLACK CJ 20 February 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1285 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXKW Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BLACK CJ DATE OF ORDER: 20 February 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The name of the first respondent be changed from 'Department of Immigration and Multicultural Affairs' to 'Minister for Immigration and Citizenship.' 2. The appeal be dismissed. 3. The appellant pay the first 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 VICTORIA DISTRICT REGISTRY VID 1285 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXKW Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BLACK CJ DATE: 20 february 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT (revised from transcript) 1 This is an appeal against a judgment of a McInnis FM delivered on 13 November 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 7 November 2003. 2 The appellant is self-represented but is not in Court today. This morning the Court's registry received a fax, which appears to be from the appellant, and which reads: 'I am unable to attend the hearing because I have not been well over the weekend…I have an appointment with the doctor today. If required I will send the medical certificate. Sorry for the inconvenience.' 3 The appellant is a citizen of India who arrived in Australia on 27 January 1997. On 15 March 2002, over five years after arriving in this country, he applied for a protection visa. This was refused by a delegate of the first respondent on 28 June 2002. The appellant then applied to the Tribunal for review of that decision. The Tribunal affirmed the decision not to grant the appellant a protection visa. 4 Prior to the application before McInnis FM, the appellant had already sought review of the Tribunal's decision in the Federal Magistrates Court: MZWND v Minister for Immigration [2004] FMCA 1084 (Riethmuller FM); twice in this Court: Applicant M294 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (V 261 of 2004, Kenny J, 12 May 2004); MZWND v Minister for Immigration and Multicultural Affairs [2005] FCA 373 (Ryan J) and had been refused special leave to appeal to the High Court: MZWND v Minister for Immigration and Multicultural Affairs [2005] HCATrans 798 (Gummow and Kirby JJ). It appears from the reasons for decision in those matters that the appellant failed to appear at each of the previous hearings before this Court and at the hearing before Riethmuller FM and in each case faxed a message to the Court on the morning of the hearing, stating that he was unable to attend because he was sick. 5 McInnis FM summarily dismissed the application before him on the footing that he did not have jurisdiction to hear it, since the application had been filed beyond the time limit provided for by s 477 of the Migration Act 1958 (Cth). He also found that, were he wrong about the application of s 477, the application would have to be dismissed because the principles of res judicata, issue estoppel and/or Anshun estoppel required that result, as found by Ryan J. Finally, McInnis FM concluded that the application before him was frivolous or vexatious, or both, and ordered, pursuant to Rule 31.11 of the Federal Magistrates Rules 2001 that the appellant not institute any proceedings for judicial review of the decision of the Tribunal without leave of the Federal Magistrates Court. 6 Since the Federal Magistrate's summary dismissal of the application before him was interlocutory in nature, the appellant needs leave to appeal to this Court and no such leave has been sought. Nonetheless, the matter has been treated as an appeal, which the respondent seeks to have dismissed. The appellant has filed a document titled 'My contentions of fact and law' which seeks to challenge the merits of the Tribunal's decision, but also states: 'I also say the Federal Magistrate did not take into account the medical certificate I had sent to the Court saying that I was ill and unable to attend.' There is no reference to such a medical certificate in the McInnis FM's judgment and, in any case, the presentation of a medical certificate could not have altered his Honour's ultimate conclusion that he did not have jurisdiction to hear the application before him. 7 If the fax that appears to have been sent by the appellant to the Court this morning could be considered an application for adjournment, it should be refused as insubstantial. The circumstance that similar faxed messages have been received on several previous occasions suggests that nothing would be gained by adjourning the hearing. 8 There is nothing before me that points to any error of law in the judgment of McInnis FM. The case is simply an attempt to re-litigate matters already determined in the Federal Magistrates Court, this Court and the High Court, and as such is an abuse of process. 9 Accordingly, the appeal is dismissed and the applicant must pay the first respondent's costs. In accordance with a request from the first respondent, I order that the name of the first respondent be changed from 'Department of Immigration and Multicultural Affairs' to 'Minister for Immigration and Citizenship.' I certify that the preceding nine (9)numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Black. Associate: Dated: 13 June 2007 Counsel for the Respondent: Mr Brown Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 20 February 2007 Date of Judgment: 20 February 2007