MZXCV v Minister for Immigration
[2007] FMCA 844
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXCV v MINISTER FOR IMMIGRATION | [2007] FMCA 844 |
| MIGRATION – Protection visa. PRACTICE AND PROCEDURE – Review of Registrar’s decision to refuse to accept Application for filing – previous proceeding seeking judicial review of same decision dismissed – Rule 2.06 – abuse of process, frivolous or vexatious – application for review dismissed. |
| Federal Magistrates Court Rules 2001, r.2.06 Migration Act 1958, s.48B(1) |
| MZXCV & Ors v Minister for Immigration & Anor [2006] FMCA 836 MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1271 |
| Applicant: | MZXCV |
| Respondent:: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 624 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
ORDERS
The Application for Review filed on 15 May 2007 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 624 of 2007
| MZXCV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
(As corrected)
In this matter the Applicant seeks an application for review of a decision of a Registrar to refuse for filing an application by the Applicant seeking review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal decision which appears to have been received by the Applicant on 12 August 2005.
The decision of the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refuse to grant protection visas to the Applicants who are Sri Lankan citizens. In the earlier proceedings there were a number of Applicants, though it is the First Applicant who made a claim for refugee status. The other Applicants relied upon their membership of the then First Applicant's family.
In the present case it would appear that the First Applicant and, indeed other Applicants, effectively seek review of the same decision. It is conceded by the Applicant that the Tribunal decision handed down on 12 August 2005 is the same decision which is now the subject of the application sought to be filed for judicial review.
The application which was sought to be filed on 15 May 2007 has endorsed upon it by Registry the following words:
“APPLICATION CONSIDERED AND REFUSED FOR FILING PURSUANT TO RULE 2.06 FEDERAL MAGISTRATES COURT RULES.
APPLICATION CANNOT BE ACCEPTED FOR FILING AS OUT OF TIME PURSUANT TO S.477 MIGRATION ACT 1958.”
Rule 2.06 of the Federal Magistrates Court Rules 2001 provides a power to the Registrar to refuse to accept a document for filing. Rule 2.06 states:
“2.06 Registrar may refuse to accept document
(1) A Registrar may refuse to accept a document for filing if:
(a)the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry.
(2)The person seeking to file the document may apply to the Court for review of the Registrar’s decision in accordance with Division 20.2.”
The Applicant, who appears today is self-represented though has the assistance of an interpreter. The Applicant acknowledges that the application that he proposed to file seeks review of a Tribunal decision previously the subject of an application before this Court. A decision dismissing the application was made by the Federal Magistrates Court and was subject to an appeal to the Federal Court. The appeal was dismissed. The Applicant nevertheless seeks to argue that the current country situation in Sri Lanka has worsened and that he has new grounds to raise in support of the application for judicial review of the Tribunal decision.
The Applicant has otherwise sought to rely upon s.48B(1) of the Migration Act 1958 (the Migration Act) which provides:
“Minister may determine that section 48A does not apply to non-citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.”
It is noted that when the application for judicial review was made to the Federal Magistrates Court on a previous occasion, it was finally determined in an ex tempore decision by a Federal Magistrate on 23 February 2006. In the decision, MZXCV & Ors v Minister for Immigration & Anor [2006] FMCA 836, the Court dismissed the application on the basis that there was no jurisdictional error disclosed.
The decision of the learned Federal Magistrate was then the subject of an appeal to the Federal Court. In its decision dated 10 August 2006, the Federal Court dismissed the appeal, and it is noted that in its decision, MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1271, the Court relevantly considered arguments advanced by the Applicants, and indeed further considered other issues not raised before the Federal Magistrate. The Federal Court concluded that there was no jurisdictional error on the part of the Tribunal and that the Tribunal had considered the claims made. Specifically, the Court in that case could find "no basis for considering that the Tribunal misconstrued its task or failed to address the correct inquiry". The Court further found that the Tribunal "did not deny any procedural fairness to the appellant".
In my view the Registrar is entitled to refuse to accept for filing an application of this kind where it clearly appears on the face to be an abuse of process, frivolous, scandalous or vexatious in circumstances where this Court has already heard and determined an application for judicial review of the same Tribunal decision which is now sought to be the subject of an application for judicial review. I am satisfied that that is properly construed as an abuse of process or at least frivolous.
In this instance, both this Court and the Federal Court have considered the Tribunal decision sought to be reviewed and the Applicants have failed before both courts. In those circumstances, in my view the Registrar has correctly refused to accept for filing the application presented by the Applicant to the court on 15 May 2007. I can see no basis upon which this Court can exercise jurisdiction to conduct a further hearing whereby it would be required to consider judicial review of a Tribunal decision already heard and determined.
I should further add that I accept that it is correctly noted on the proposed application by the Registrar that in any event this Court is without jurisdiction on the grounds that the application is filed out of time. However, for the present purposes it is not necessary for me to further consider that issue.
The reference by the Applicant to s.48B of the Migration Act is misconceived. That section provides a discretion to the Minister and does not provide jurisdiction to this Court to enliven a further application for judicial review of the Tribunal decision.
It follows for the reasons I have given that the application for review filed on 15 May 2007 should be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 June 2007