NALK v Minister for Immigration
[2006] FMCA 820
•30 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NALK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 820 |
| MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – decision of the Tribunal upheld by the Federal Court and the High Court each on two occasions – new application dismissed as an abuse of process and incompetent under the Migration Litigation Reform Act 2005 (Cth). |
| Federal Magistrates Court Rules 2001 (Cth), rr. 10.01, 13.10, 44.11, 44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act2005 (Cth) |
| NALK v Minister for Immigration [2003] FMCA 388 NALK v Minister for Immigration [2004] FCA 82 NALK v Minister for Immigration [2005] FMCA 1238 NALK v Minister for Immigration [2005] FCA 1463 |
| Applicant: | NALK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1244 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2006 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondents: | Ms S Zarucki |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 1 May 2006 is incompetent and is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of D. Callaghan, file number NOO/32463) made on 30 January 2003 and handed down on 20 February 2003, or the decision of the delegate of the Minister made on 28 February 2000, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1000 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1244 of 2006
| NALK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceeding were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 1 May 2006 for judicial review from the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 January 2003 and handed down on 20 February 2003 affirming a decision of the delegate of the first respondent made on 28 February 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal. The applicant filed an affidavit sworn on 27 April 2006 seeking an extension of time to file this application.
The applicant seeks an order for the respondent to show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth). The applicant sets out five unparticularised grounds of review and I adopt those five grounds for the purpose of this judgment.
Under the application heading, “Other Court Proceedings” the applicant identified two High Court, two Federal Court and two Federal Magistrates Court proceedings. I adopt the affidavit of Svetlana Zarucki, sworn on 25 May 2006, for the Court file numbers and dates of those decisions:
a)NALK v Minister for Immigration [2003] FMCA 388 (4 September 2003);
b)NALK v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 82 (13 February 2004);
c)NALK v Minister For Immigration & Multicultural & Indigenous Affairs, High Court of Australia, file S90 of 2004, deemed abandoned on 20 September 2004;
d)NALK v Minister For Immigration & Multicultural & Indigenous Affairs, High Court of Australia, file S361 of 2004, application for special leave to appeal dismissed on 27 April 2005;
e)NALK v Minister for Immigration & Anor [2005] FMCA 1238 (31 August 2005);
f)NALK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1463 (5 October 2005).
Under r.10.01(2) of the Rules, this Court has the power to hear and determine all or part of the proceedings on a first court basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth) which repealed the Court’s previous broader jurisdiction under s.483A and introduced a new section 476. At the same time, the migration litigation amendments introduced r.44.11(a) to the Rules. The Court may dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12. I note that this rule should be exercised cautiously and only in appropriate circumstances.
In this case there is an incontestable absence of jurisdiction due to the multiple times the applicant has been before the Courts referred to above. The High Court, the Federal Court and the Federal Magistrates Court determined that there is no jurisdictional error in the Tribunal’s decision.
The other significant problem facing the applicant is the issue of time, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act, which places this application within the operation of s.476. This means that a time limit to provide under s.477(1) applies and the application must be made to the Court within 28 days of the actual notification of the decision.
The Court has the power under s.477(2) to extend the 28 day period to 56 days, if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is satisfied that it is within the interests of the administration of justice to do so. For the purpose of determining the operation of this provision I will take the notification to have occurred 7 working days after 20 February 2003, which was when the decision was handed down. This is the date acknowledged by the applicant in his application.
The application seeks an extension of time. I believe that even if the applicant had been properly informed in the preparation of the application, he would not benefit from the transitional time limit extension. The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act which commenced on 1 December 2005. The transitional period, with extensions, expired on 28 February 2006, 84 days from the commencement of the amended provisions.
This application was not filed until 1 May 2006, which is well outside the operation of the transitional provisions and is clearly incompetent. I note that there is an affidavit which acknowledges the delay but does not explain it. Consequently, the application filed on 1 May 2006 must be dismissed on the grounds that there is an abuse of process, and under the provisions of the Migration Litigation Reform Act, it is incompetent.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 7 June 2006
1
4
4