MZXSO v Minister for Immigration
[2007] FMCA 2155
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXSO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2155 |
| MIGRATION – Visa – review of Refugee Review Tribunal decision – review of Federal Magistrates Court registrar decision – abuse of process – exceeded statutory time limits. |
| Migration Act 1958, s.417 Federal Magistrates Court Rules, r.2.07 |
| Applicant: | MZXSO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1290 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 11 October 2007 |
| Date of last submission: | 11 October 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms M. Ngo |
| Solicitor for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the costs of the Respondent fixed at $1,000 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1290 of 2007
| MZXSO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for review of a decision of a registrar of the Federal Magistrates Court. The registrar on 19 September 2007, pursuant to r.2.06 of the Federal Magistrates Court Rules, refused to accept for filing an application pursuant to the Migration Act 1958. The application was an application for judicial review of a decision of the Refugee Review Tribunal made on 5 December 2003 and handed down on 9 January 2004.
The decision had been the subject of previous judicial review proceedings. The applicant had sworn an affidavit in 2004 seeking judicial review in the High Court of Australia. In that affidavit, he attests to the fact that on 14 August 2002 the delegate refused a visa and annexes a copy of that decision. On 10 September 2002, he made application to the Refugee Review Tribunal for review of that decision.
The applicant swears on 2 February 2004 that on 5 December 2003 the tribunal refused his application for review and he sets out in his affidavit that shown to him and marked "KL-2" is a copy of the decision. Those proceedings were remitted to the Federal Court and subsequently the Federal Magistrates Court and ultimately came before McInnis FM on 27 October 2005.
McInnis FM on that date dealt with the matter and dismissed the application. He set out in his judgment that, although the matter had been brought forward a day from an earlier notified hearing date, he was satisfied that proper and due notice had been given to the applicant at the appropriate address for service, which was confirmed in His Honour's mind by the fact that he had received a facsimile transmission stating, "Sorry, I won't be able to come tomorrow. I am not well at all."
The decision by His Honour McInnis FM to dismiss the application was the subject of an appeal which was dismissed by Finkelstein J in the Federal Court of Australia.
The applicant then applied again for judicial review of the proceedings, the application coming before His Honour Burchardt FM on 8 June 2007 and being dismissed by His Honour on that date. Significantly, His Honour considered the substance of the decision and the grounds of review on that occasion and found that the decision was one that was open to the tribunal; and indeed, in His Honour's view, it was "not only plainly open to it but, to my mind, absolutely inevitable in those circumstances".
His Honour Burchardt FM also notes that the applicant on that occasion had failed to reveal to the court the number of previous proceedings that had occurred.
The grounds of the application before His Honour Burchardt FM were identical to the grounds of the application that are currently before me. The case has therefore been the subject of two previous proceedings on which at each occasion the application has been dismissed.
It appears to me that to bring further proceedings in this case is an abuse of process. I am strengthened in this view by the fact that, in the material provided by the applicant, it appears clear that on 17 January 2006 he had sought that the minister exercise her powers under s.417 of the Act granting the visa and the minister had refused that application made by him.
After the original decision and on the current time limit set out in the Act, it is not only outside the 28‑day period provided for but the maximum extended time of up to 84 days. In this case, it is clear that the applicant must have been in possession of the decision at the time that the High Court proceedings were made and there is no question that it is now out of time. For this reason, this court has no jurisdiction to deal with the matter under the Act.
Indeed, the only basis on which he seeks an extension of time, as set out in his affidavit, is that he had made an application to the minister under s.417 of the Act. This of itself does not appear in these circumstances to have been a proper basis for extending time, in any event.
In all of the circumstances, I am not persuaded that the decision of the registrar to refuse to allow the applicant to file proceedings for a third time in this court was inappropriate or outside the powers of the registrar under the rules. Indeed, it appears to me, it was the appropriate decision as the applicant is doomed to fail in the application in this court.
I, therefore, dismiss the application for review of the registrar's decision.
This is the applicant's third set of court proceedings about the one decision. It is an application in which he has been unsuccessful and costs ordinarily follow the event. The applicant opposes costs on the basis that he is of little means and it would be very difficult for him to meet any costs order. This, of itself, is not a proper reason for refusing to make a costs order in the circumstances of a case such as this. I, therefore, order that the applicant pay the first respondent's costs and in regard to the Federal Magistrates Court Scale, I fix those at $1,000.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 06/02/2008
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