MZXPP v Minister for Immigration & Citizenship

PREVIOUS JUDICIAL REVIEW 6 Following the Tribunal's decision, on 31 July 1998 the appellant became a party to what is referred to as the Muin and Lie class action in the High Court: see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289. This matter was later remitted to this Court and subsequently dismissed by Emmett J on 20 February 2004. 7 On 30 March 2004, the appellant filed an independent application in the Federal Magistrates Court seeking review of the Tribunal's decision. In dismissing the application on 21 December 2005, McInnis FM approved the decision-making process of the Tribunal stating: "… the tribunal appears to have properly analysed the claim as made by the Applicant and then in making adverse credibility findings reasonably open to it has drawn attention to what may be described as the inconsistent and unclear evidence of the Applicant. It was entitled to draw conclusions concerning the documents, and in particular the purported warrants which had been sent to the Tribunal before the hearing." 8 On 18 January 2006, the appellant appealed the decision of the Federal Magistrate. Acting as a single judge in the appellate jurisdiction of this Court, Sundberg J considered and dismissed the appeal on 12 May 2006. In doing so, his Honour concluded that the Tribunal had proceeded in a manner free of error and was entitled to draw the conclusions that it did, including the finding that the documents produced by the appellant were not genuine: see Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542. 9 Following the decision of Sundberg J, the appellant applied to the High Court for special leave to appeal. The application for leave was refused on 5 October 2006.

FEDERAL MAGISTRATES COURT 10 On 21 March 2007, the appellant again filed an application for review of the Tribunal's decision in the Federal Magistrates Court. In that application, the appellant asserted that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction. In the particulars, the appellant stated: "The tribunal referred to independent country information which indicated that fraudulent documents were easily obtained in India. The tribunal then relied upon that independent evidence in concluding that the warrants submitted by me were not genuine. It is not clear whether or not this information was put to me during the course of the tribunal's hearing. In any event, particulars of that independent information were not provided to me in writing before the tribunal's hearing, in accordance with s 424A(1) of the Migration Act." 11 The Federal Magistrate noted that the application of s 424A of the Migration Act 1958 ("the Migration Act") was properly dealt with in the previous proceedings in both this Court and the Federal Magistrates Court: see paras [9]-[10]. In those earlier proceedings, it was established that there had been no breach of s 424A by the Tribunal: see Applicant S1603 at [8]. The Federal Magistrate dealt with the issue in Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1878 at [14] as follows: "It should also be noted that in this case the Applicant had sought to rely upon a breach of s 424A of the Migration Act. That ground can be dealt with in brief terms on the basis that the section relied upon was not in fact operational on the day of the Tribunal decision. Indeed it became operational on the days fixed by proclamation, which in relation to that section was 11 December 1998, which is more than a year after the Applicant's application had been finalised before the Tribunal; hence there is no merit in that ground relied upon by the Applicant." 12 Aware that the application of s 424A of the Migration Act had already been the subject of judicial consideration, the Federal Magistrate went on and made final orders and dismissed the matter at [17] - [18] in the following terms: "It is evident to me on the chronology that I have recited in this judgment that this is a matter which has clearly been heard and determined by the Court and the doctrine of res judicata applies. I do not regard the Court as being competent or having power to hear and determine this second application which does no more than seek to make a further application in a matter already properly heard and determined by this Court."

APPEAL TO THIS COURT 13 On 3 July 2007, the appellant filed an appeal from the decision of the McInnis FM dated 20 June 2007. The appellant's grounds of appeal asserted the Federal Magistrate has committed an error of law, constituting jurisdictional error. Under the heading 'Particulars' the appellant stated: "The Court concludes that there has been no breach of procedural fairness or natural justice based upon the material before the court or that the tribunal has properly addressed the issues before it and clearly raised the issue of document fraud."

ANALYSIS 14 The appellant has not identified any error, jurisdictional or otherwise, in the decision of the Federal Magistrate. 15 As a preliminary matter, McInnis FM made a finding at para [7] that the application was incompetent because it had not been filed within the prescribed time limits: see s 477 of the Migration Act and cl 42(a) of the transitional provisions in Pt 2 to Sch 1 of the Migration Litigation Reform Act 2005 (Cth) and Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114. The Federal Magistrate declined to dismiss the application on that basis and instead proceeded to assess the matters that were raised by the appellant. The two matters on the application before me appear to be repeated from earlier proceedings - the issue of an alleged breach of s 424A of the Migration Act and an allegation of a breach of procedural fairness or natural justice. As set out earlier, both matters have already been considered and determined against him. 16 Whether the Federal Magistrate was right to conclude that the appellant was prevented from raising these matters pursuant to the doctrine of res judicata may be put to one side: cf Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 at [39] and MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387 ("MZWHU") and the authorities cited. On any view, the commencement of this proceeding by the appellant was and remains an abuse of process. The proceeding was doomed to fail. It is the latest in the history of repeated litigation over a period of approximately 10 years during which the appellant has unsuccessfully sought to establish error in a decision of the delegate made on 9 October 1997. The appellant did not raise any matter which would permit him to reagitate issues already considered and determined against him by the Tribunal, the Federal Magistrates Court and the Federal Court: for example, see SBFF v Minister for Immigration and Citizenship (2007) 158 FCR 49 at [23]; MZWHU at [30] and [31]; SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 at [22]-[29]; SZATR v Minister for Immigration and Multicultural Affairs [2006] FCA 986 at [16]-[18]; SYVB v Refugee Review Tribunal [2005] FCA 1093 at [16] and by the Full Court in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 323 (per Carr and Sundberg JJ) and 346-347 (per Kiefel J).

ORDERS 17 For those reasons, the appeal should be dismissed and the appellant should pay the respondents' costs of the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: Australian Government Solicitor