S1004 of 2003 v Minister for Immigration - [2006] FMCA 1090

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1004 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1090

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court on two separate occasions and the High Court – new application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 477
Migration Litigation Reform Act 2005 (Cth)

Applicant:

APPLICANT S1004 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1853 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

1 August 2006

Delivered at:

Sydney

Delivered on:

1 August 2006

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the aid of a Bengali interpreter

Advocate for the Respondents:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 3 July 2006 is incompetent and is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1853 of 2006

APPLICANT S1004 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings 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 3 July 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 2 May 2000 and handed down on 16 May 2000, affirming the decision of a delegate of the first respondent made on 15 October 1999, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal, number N99/30450.The applicant filed an affidavit sworn on 3 July 2006 in support of his application.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds of review:
1.Migration Act 1958 was not observed properly. The Tribunal member failed to maintain ‘Procedural Fairness’ as required under section 424A of the Migration Act 1958.
2.The Tribunal Member failed to justify the evidence provided by me.
3.There are some significant errors that this Tribunal made. I will explain them in my submission.
I am satisfied that the applicant has been advised by the respondents’ solicitors of the application that was made at the first directions. An affidavit of Elizabeth Warner Knight, affirmed on 11 July 2006 and filed on the same date, attached a copy of the letter forwarded to the applicant. That letter advised the applicant that the respondents’ solicitors would seek to have the application dismissed with costs at the first directions hearing on the ground that the application is out of time and incompetent.
On 1 August 2006, Ms Warner Knight tendered in Court a further letter dated 14 July 2006, which was forwarded to the applicant and enclosed sealed copies of the response and supporting affidavit.
Under the heading “Other Court Proceedings” in the application, the applicant recorded two previous proceedings:
a)NSD 238 of 2005, Federal Court of Australia decision of Gyles J, 3 May 2005.
b)S577 of 2005, High Court of Australia [2006] HCA Trans 285, 13 June 2006, decision of Gummow ACJ and Heydon J.
The applicant failed to record the following proceedings, which he was also involved in:
a)NSD 609 of 2000, in the Federal Court before Whitlam J where the matter was dismissed by consent on 6 October 2000.
b)Federal Magistrates Court of Australia before me and dismissed by judgment delivered on 28 January 2005.
I also refer to the affidavit Ms Warner Knight, which annexes a copy of the transcript of the High Court where Gummow ACJ and Heydon J dismissed the applicant’s special leave application.
I am of the view that what the applicant has done in this application is an attempt to start the whole circular process again. The applicant has not raised any new ground of review that was not been put before the Courts on previous occasions. This is nothing more than an attempt by the applicant to further delay finality of proceedings through misuse of the Court’s processes and is clearly an abuse of process.
Under r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), the Court has the power to hear and determine all or part of the proceedings on a final basis at 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 of the Act and introduced a new s.476. At the same time, r.44.11(a) was introduced 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, which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2)To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
I note that this power should be exercised cautiously and only in appropriate circumstances. In this case, there is an incontestable absence of jurisdiction of this Court due to the multiple times this applicant has been before the Courts. The Federal Magistrates Court, the Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision. Although none of the Courts expressly made the statement, that decision is a privative clause decision.
The other significant problem for the applicant is that these proceedings were filed under the Act as altered by the Migration Litigation Reform Act and so places this application within the operations of the amended s.476. This means that the time limit under s.477(1) applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) “to extend that 28 day period up 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 interest of the administration of justice to do so.”
The Tribunal decision was made on 2 May 2000. Under the heading “Date when notification of the decision was received by the applicant” in the current application, the applicant initially recorded “6 May 2000”. This date of notification is also confirmed in the previous Court proceedings. No issue arises in respect of the actual date of notification. Therefore the deemed date of notification is not relevant to this application.
The application seeks an extension of time under s.477. I believe that even if the applicant had been properly advised in the preparation of his application, he would not benefit from the transitional time limit extension. The decision of the Tribunal was made prior to the amendments conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005. The transitional period with extension expired 84 days thereafter, on Thursday 23 February 2006. This application was not filed until 3 July 2006, which is well outside that time period and is clearly incompetent.
I note that no affidavit explaining the delay has been filed and no submissions were made regarding delay.
Consequently, the application filed on 3 July 2006 must be dismissed on the ground that it is an abuse of process. Under the provisions of Migration Litigation Reform Act it is also incompetent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 11 August 2006