MZWQB v Minister for Immigration & Anor
[2006] FMCA 1776
•20 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1776 |
| MIGRATION – Refugee Review Tribunal decision affirming a decision by a delegate to refuse a protection visa – where court has no jurisdiction – effect of Migration Act 1958 (Cth), s.477 – extension of time – where application for review filed more than 28 days after notification of decision – where applicants were notified of decision on 10 August 2004 – where application not filed until 25 October 2006. PRACTICE & PROCEDURE – Competency – notice of objection to competency – jurisdiction – whether court has jurisdiction – application out of time. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where application for review of RRT decision previously heard and dismissed by Federal Magistrates Court in Melbourne – where appeal heard and dismissed by Federal Court – where application for special leave to appeal dismissed by the High Court – where applicants commenced fresh proceedings in the Federal Magistrates Court in Sydney – costs. |
| Migration Act 1958, (Cth), s.477 Migration Litigation Reform Act 2005 (Cth), Part 2, item 42 of sch.1 Federal Magistrates Court Rules 2001 rr.13.10, 44.06 |
| MZWQB & Anor v Minister for Immigration [2005] FMCA 720 Colgate Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225 |
| First Applicant: | MZWQB |
| Second Applicant: | MZWQC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3102 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 November 2006 |
| Date of Last Submission: | 20 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is not competent.
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $800.00.
No further application for review of the decision of the Refugee Review Tribunal made on 9 July 2004 and handed down on 30 July 2004 is to be accepted for filing at any registry of the Court without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3102 of 2006
| MZWQB |
First Applicant
| MZWQC |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Refugee Review Tribunal handed down on 30th July 2004. The Tribunal affirmed a decision by a delegate of the Respondent Minister not to grant the Applicants a protection visa.
The application appears to be out of time, having been filed more than 28 days after the applicants were notified of the Tribunal decision.
It also appears to be an abuse of process, as the applicants have previously applied to this court for review of that decision, and that application was dismissed.
Background
The applicants are citizens of India who arrived in Australia on
29th January 2003. They are husband and wife. On 25th February 2003 they applied for protection (class XA) visas, but these were refused on 13th March 2003. The applicants applied to the Refugee Review Tribunal for a review of that decision on 20th March 2003.
The first applicant attended a hearing of the Tribunal on 4th June 2004 and gave evidence. The Tribunal made its decision on 9th July 2004 and handed the decision down on 30th July. The Tribunal affirmed the decision not to grant the applicants protection visas.
Earlier Court Proceedings
The applicants originally applied to the Federal Magistrates Court in Melbourne on 25th August 2004, seeking a review of the Tribunal decision. Their application was heard by O’Dwyer FM on 2nd May 2005. His Honour dismissed the application that same day (MZWQB & Anor v Minister for Immigration [2005] FMCA 720).
The applicants then appealed. Kenny J, exercising the jurisdiction of the Full Court of the Federal Court, heard the appeal on 18th April 2006 and dismissed the appeal the same day.
The applicants have now commenced proceedings in this court by filing an application on 25th October 2006. The court’s Sydney Registry allocated them the same pseudonyms that they had previously been allocated when their application was heard in Melbourne.
The application states that the applicants were notified of the decision on 10th August 2004.
The application claims that the Tribunal:
a)breached s.424A of the Migration Act;
b)breached procedural fairness; and
c)denied the applicants natural justice.
I note from the decision of O’Dwyer FM that the applicants previously claimed that the Tribunal:
a)failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice; and
b)exceeded its jurisdiction.[1]
[1] [2005] FMCA 720 at [23]
The first applicant filed an affidavit, which was either sworn or affirmed, setting out these claims:
i)RRT failed to comply with the obligation to disclose information that was relevant to my case. I refer to recent decision of SAAP and SZEEU in relation to this matter.
ii)My application is late. I refer to Plaintiff S157/2002 v Commonwealth of Australia in which the High Court ruled that a decision by RRT can still be reviewed if it is infected by jurisdictional error even if it is brought to the court after time limit.
The solicitors for the first respondent have filed a Notice of Objection to Competency and a Response.
The Notice of Objection to Competency objects to the jurisdiction of the court to try the Application on the bases that:
a)the application is out of time; and
b)the court has no power to extend time for the commencement of the proceedings beyond 23rd February 2006 and until 25th October 2006, when the application was filed.
The Response claims:
i)
that the court lacks jurisdiction to hear the application
(r. 44.06(2)(a), for the same reasons as are set out in the Notice of Objection to Competency; and
ii)that the application is an abuse of the court’s process, because the decision of the Refugee Review Tribunal has been the subject of previous judicial review proceedings. Those proceedings are those in the Federal Magistrates Court and the Federal Court, to which I have previously referred, but also in the High Court. The Response claims:
(a)An application for special leave to appeal from the judgment of the Federal Court to the High Court of Australia, dismissed on 5th October 2006; [2006] HCA Trans 551.
I note that the Application makes brief mention of the FMCA and FCA but not to the High Court application.
Conclusions
Either of the grounds set out in the Response would be sufficient to warrant summary dismissal of the Application. The application is not competent, as the court has no jurisdiction to hear it, because it is out of time. The applicants’ contention in the first applicant’s affidavit that the Tribunal decision can still be reviewed “even if it is brought to the court after time limit” does not take into account the amendment to
s.477 of the Migration Act brought about by the Migration Litigation Reform Act 2005.
The application is out of time. The Tribunal handed down its decision on 30th July 2004. The applicants set out in their Application that they were notified of the decision on 10th August 2004. Nevertheless, Part 2, item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 provides that the applicants are taken to have been actually notified of the decision on 1st December 2005. The application to this court was not made until 25th October 2006, which is clearly not within 28 days of 1st December 2005.
Under s.477 (1), an applicant must file an application for review of the decision of the Tribunal within 28 days of having been notified of that decision. The court has the power to extend that time for a maximum of 56 days if:
a)the application is made within 84 days of notification; and
b)the court is satisfied that it is in the interests of the administration of justice to do so (s.477 (2)).
In order to give the court power to extend the time, the application in this case would have had to be made by 23rd February 2006, which is 84 days after 1st December 2005. The application was not made until 25th October 2006, so the court has no power to extend the time.
Accordingly, the court has no jurisdiction to hear the application.
The application is not competent.
The application is also an abuse of process. The decision of the Refugee Review Tribunal handed down on 30th July 2004 has already been the subject of an application for review in this court.
The application was dismissed and an appeal against that decision was also dismissed. An application for special leave to appeal to the High Court has also been dismissed.
I note that the High Court dismissed the application for leave to appeal on 5th October 2005, 20 days prior to the applicants’ attempt to start the proceedings all over again. It is clear that the proceedings have been brought for an ulterior purpose, to prolong the applicants’ stay in Australia. Whilst it is understandable that parties would wish to remain in Australia, it is an abuse of process to bring a further application purely as a means of securing the extension of a Bridging visa.
The application is an abuse of process and should be dismissed with costs. In such circumstances, costs should be assessed on an indemnity basis rather than a party and party basis (Colgate Palmolive Ltd v Cussons Pty Ltd (1993) 46 FCR 225. In this case, however, the solicitor for the Minister, Mr Markus, seeks only the sum of $800.00, which is well within the range in Schedule 1 Part 2 of the Rules, which provide that if the proceeding is concluded at or before the first court date for the proceeding the costs are $1,000.00. It appears that the applicants are getting off lightly so far as costs are concerned.
As the application is an abuse of process, I will make an order that no further application for review of the Tribunal’s decision should be accepted without leave.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 24 November 2006
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