NAEH v Minister for Immigration

[2007] FMCA 818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 818

MIGRATION – Review of Refugee Review Tribunal decision – show cause application filed out of time and incompetent.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, s.477
Migration Litigation Reform Act 2005 (Cth)

SZICV v Minister for Immigration [2007] FCAFC 39

Applicant: NAEH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1403 of 2007

Judgment of: Driver FM

Hearing date: 30 May 2007

Delivered at: Sydney

Delivered on: 30 May 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms H Blackman
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1403 of 2007

NAEH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 1 May 2007.  The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 16 October 2002 and handed down on 5 November 2002.  The application is supported by an affidavit which annexes a copy of the Tribunal decision.  The application asserts actual notification of the Tribunal decision on 20 October 2002.  That appears to be an estimate, based on the mistaken belief that the decision was posted when it was signed, rather than when it was handed down.  Nevertheless, there is no doubt that the applicant was notified of the Tribunal decision shortly after it was made.  The application notes earlier judicial review proceedings in the Federal Court, the Full Federal Court and the High Court which were commenced in 2002.  The application notes that each of those proceedings was dismissed.

2. The Minister filed a response to the application on 29 May 2007. The Minister seeks dismissal of the application on the basis that it is obvious that the application was filed outside the time prescribed in s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister asserts that the application is 1,654 days out of time. It is out of time, but not to that extent. The effect of the transitional provisions in the Migration Litigation Reform Act 2005 (Cth) is that the applicant is taken to have been notified of the Tribunal decision on 1 December 2005. A competent application would have needed to have been filed by 24 February 2006. The application was filed well over a year after that deadline.

3. It is now trite law that the time limitation imposed by s.477 of the Migration Act imposes a jurisdictional limitation on this Court[1]. I have previously held that s.477 should be taken to be a valid law of the Commonwealth[2].

   [1] SZICV v Minister for Immigration [2007] FCAFC 39

   [2] consistently with SZICV at [67]

4. I invited the applicant this morning to make oral submissions in relation to his application.  He relies on the application and the supporting affidavit.  Ms Blackman, who appears for the Minister, told me from the bar table that there have been earlier legal proceedings in relation to various decisions in some way connected to this applicant’s protection visa application.  However, in the time available it has not been practicable for the Minister to produce evidence of those proceedings.  It is sufficient for me to deal with the present application on the basis of its incompetence.

5. I will order that the application be dismissed as incompetent.

6. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the amount of $800.  That is less than scale costs under the Federal Magistrates Court Rules 2001 (Cth). The applicant did not wish to be heard on costs. I accept that costs of not less than $800 have been properly and reasonably incurred on behalf of the Minister on a party and party basis.

7. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $800.

8. There is a question whether the applicant should be compelled to seek leave before he files any further applications in relation to his protection visa application.  However, I have no evidence of other proceedings in this Court that would point clearly to an abuse of process.  I have not read the earlier Federal Court and High Court decisions referred to in the application. 

9. It is possible that some order requiring leave for further applications may have already been made in one or other of the earlier proceedings.  It does not appear that the registry was alive to any need for leave in accepting this present application.  I will not make in this matter an order requiring the applicant to seek leave for any further application.  However, the applicant needs to understand that it is likely to be fruitless to seek repeatedly to have the Tribunal decision subjected to judicial review.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 June 2007