M52 of 2002 v Minister for Immigration
[2007] FMCA 57
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M52 OF 2002 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 57 |
| MIGRATION – RRT decision – second application for judicial review – dismissed as incompetent. |
Migration Act 1958 (Cth), ss.476, 477
Applicant M52 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 111
M52 and M53 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1495
MZWGV v Minister for Immigration [2005] FMCA 980
MZXAF v Minister for Immigration [2005] FMCA 979
MZXAF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 167
MZXAF v MIMA & Anor [2006] HCATrans 550
S… v Minister for Immigration & Multicultural Affairs [2000] FCA 1961
SZBVC v Minister for Immigration [2006] FMCA 834
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494
| Applicant: | APPLICANT M52 OF 2002 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3656 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The substantive application is dismissed as incompetent by reason of s.477 of the Migration Act 1958 (Cth).
The applicant must pay the first respondent’s costs in the sum of $900.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 2 June 2000 reference V99/10651 or for review of any other administrative decision or action by any person concerning the visa application which was considered in that decision shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3656 of 2006
| APPLICANT M52 OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
On 8 December 2006 the applicant lodged with the Registry in Sydney, and it accepted, an application in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which is dated 18 May 2000 and was handed down on 2 June 2000.
The Tribunal affirmed a decision of a delegate made in 1995, refusing to grant a protection visa to the applicant. The subsequent history of the matter is recounted in an affidavit of Ms Nanson sworn on 2 January 2007 and its attachments, and it is unnecessary for me to recount the claims that were addressed by the Tribunal, its reasons, or the subsequent lengthy history of litigation by the applicant.
This can be found in the judgments of North J on 11 December 2000 in S… v Minister for Immigration & Multicultural Affairs [2000] FCA 1961; Heerey J on 5 December 2003 in M52 and M53 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1495; Black CJ, Dowsett and Bennett JJ on 6 May 2004 in Applicant M52 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 111; Riethmuller FM on 6 April 2005 in MZWGV v Minister for Immigration [2005] FMCA 980; Riethmuller FM on 2 June 2005 in MZXAF v Minister for Immigration [2005] FMCA 979; Gray J on 21 April 2006 in MZXAF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 167; and Gummow and Heydon JJ on 5 October 2006 in MZXAF v MIMA & Anor [2006] HCATrans 550.
I note that Riethmuller FM in his first judgment, made an order that:
There be no further applications brought by the applicant with respect to the decision of the Refuge Review Tribunal except by leave of the court.
His Honour’s second judgment dismissed a further application which was filed without leave. Regrettably, the Court’s Registry in Sydney also failed to detect the previous no‑filing order, and the absence of any leave being first obtained, when allowing the present application to be lodged. In view of the applicant’s litigation history, I propose to repeat Riethmuller FM’s order in broader terms.
The present application was made returnable by the Registry at a first court date before me today. Prior to today the applicant was served with Ms Nanson’s affidavit, and with a response taking objection to the competence of the proceedings under the time limits which now apply by reason of s.477 of the Migration Act.
The history of litigation establishes without any doubt that the applicant received actual notification of the Tribunal’s decision which is the subject of the proceedings prior to 1 December 2005. His present application is undoubtedly brought outside the mandatory time limit under s.477. The effect of this provision in these circumstances has been discussed by me in several previous cases, and I shall not repeat my analysis which explains why the present application is unavoidably incompetent (see SZBVC v Minister for Immigration [2006] FMCA 834, SZICV v Minister for Immigration & Anor [2006] FMCA 1063, and SZIVA v Minister for Immigration & Anor [2006] FMCA 1494).
The applicant had no arguments today to present to me to show competency. Nor, indeed, could he show why his application is not an abuse of process, but I need not dismiss the application on that basis.
For the above reasons the application will be dismissed with costs.
I certify that the preceding nine [9] paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 January 2007
CORRECTIONS
Paragraph 1 is amended to read:
On 8 December 2006 the applicant lodged with the Registry in Sydney, and it accepted, an application in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which is dated 18 May 2000 and was handed down on 2 June 2000.
Paragraph 2 is amended to read:
The Tribunal affirmed a decision of a delegate made in 1995, refusing to grant a protection visa to the applicant. The subsequent history of the matter is recounted in an affidavit of Ms Nanson sworn on 2 January 2007 and its attachments, and it is unnecessary for me to recount the claims that were addressed by the Tribunal, its reasons, or the subsequent lengthy history of litigation by the applicant.
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