A103 of 2003 v Minister for Immigration - [2006] FMCA 1470

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A103 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1470

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) Visa – decision of the Tribunal previously upheld by the Federal Court, the Full Federal Court and the High Court – new application dismissed as incompetent and an abuse of process.

Federal Magistrates Court Rules 2001 (Cth), rr.10.01, 13.10, 44.11, 44.12
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476, 477
Migration Litigation Reform Act 2005 (Cth)

Applicant A103 of 2003 v Minister for Immigration [2004] FCA 584
Application A103 of 2003 v Minister for Immigration [2004] FCAFC 313
Applicant A103 of 2003 v Minister for Immigration [2005] HCATrans 634

Applicant:

APPLICANT A103 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2631 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

4 October 2006

Delivered at:

Sydney

Delivered on:

4 October 2006

REPRESENTATION

Advocate for the Applicant:

The applicant appeared via telephone with the aid of a Punjabi interpreter

Advocate for the Respondents:

Ms A Nesbitt

Solicitors for the Respondents:

Sparke Helmore Solicitors

ORDERS

The application filed on 18 September 2006 is incompetent and is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2631 of 2006

APPLICANT A103 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 18 September 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 December 2002 and handed down on 29 January 2003, affirming the decision of a delegate of the first respondent made on 30 January 2002 refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “Applicant A103/2003”.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. The applicant sets out three grounds of review:
1.The Tribunal had a closed mind.
Particulars
On page 15.70 of the RRT decision the Tribunal says “where conflict occurs between the applicant’s evidence and the country information I accept the country information as the reliable source.
The Tribunal should have an open mind and decide each issue based on the information rather than having a blind approach.
2.The Tribunal made jurisdictional error as it failed to consider I belong to a particular social group.
Particulars
RRT on first paragraph on page 14 of it decision accepted that I may have encountered difficulty in Punjab in the 1980’s. But it did not look to see whether I was a member of particular social group.
3.There is no evidence that:
(a) I was able to operate my construction or farming business page 17.50 of the decision.
(b) That Sikhs can live safely in Calcutta – page 17095.
4.There is exceptional circumstances in my matter that needs to be revisited. I seek the court’s relief.
Under the application heading “Other Court Proceedings”, the applicant entered “All applications were made by the applicant [A103/2003]”with no other details. I have located three previous applications, all of which have been unsuccessful:
a)Applicant A103 of 2003 v Minister for Immigration [2004] FCA 584 per Mansfield J (28 May 2004);
b)Application A103 of 2003 v Minister for Immigration [2004] FCAFC 313 per Moore, Selway and Lander JJ (18 November 2004);
c)Applicant A103 of 2003 v Minister for Immigration [2005] HCATrans 634 per McHugh and Heydon JJ (30 August 2005).
When the applicant was asked if these previous cases concerned him, he confirmed that they did but that he had failed to refer to them in his current application.
All the applicant has done is file another application in an attempt to start the whole circular process again. The applicant has not attempted to raise any new ground of review that has not been put before the Courts on previous occasions. This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s processes and is clearly an abuse of process.
The Tribunal decision was handed down on 29 January 2003. In the application to this Court under the heading “Date when notification of the decision was received by the applicant”, the applicant completed as “6 February 2003”. The application is signed by the applicant and dated 18 September 2006.
Under r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments introduced r.44.11(a) to the Rules. The Court may dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12, which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2) To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
I note that this power should be exercised cautiously and only in the appropriate circumstances. In this case there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the Courts as referred to above at [4]. The Federal Court, the Full Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision. Although none of the Courts have expressly made the statement, which decision is a privative clause decision.
The other significant problem facing the applicant is in relation to the time limit, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act, which places this application under the operations of s.476. This means that the time limit under s.477(1) of the Act applies, and the application must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision. The Court has power under s.477(2) to extend that 28 day period up to 56 days if an application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is satisfied that it is in the interests of the administration of justice to do so.
The application seeks an extension of time. I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from an extension of the transitional time limit. The decision of the Tribunal was made prior to the introduction of the amendments to the Act conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005. The transitional period, with extensions, expired on 23 February 2006, 84 days from the commencement of the amended provisions. This application was not filed until 18 September 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.
I note that no affidavit explaining the delay has been filed.
Consequently, the application filed on 18 September 2006 must be dismissed on the ground that it is an abuse of process and is also incompetent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 18 October 2006