S116 of 2003 v Minister for Immigration
[2007] FMCA 647
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S116 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 647 |
| MIGRATION – RRT decision – second application to Tribunal – previous decision upheld on judicial review – Tribunal correctly declined jurisdiction – application dismissed at show-cause hearing – no further filings direction to Registry. |
| Migration Act 1958 (Cth), ss.476, Pt. 7 Federal Magistrates Court Rules 2001 (Cth), r.44.12, |
NABE of 2002 v MIMA [2002] FCA 1410
NABE v MIMA [2003] FCA 155
S116 of 2003 v MIMA & Anor [2006] FMCA 119
S116 of 2003 v MIMA [2006] FCA 618
Applicant S116 of 2003 v MIMA & Anor [2006] HCATrans 698
Jayasinghe v Minister for Immigration (1997) 76 FCR 301
| Applicant: | APPLICANT S116 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 660 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 20 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Mr O Young |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,000.
Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 3 September 2002 (Ref: N00/33369) or on 15 February 2007 (ref: 061060993), or for review of the decision of the delegate of the first respondent dated 11 April 2000, or for review of any other administrative decision or action by any person or tribunal arising out of the protection visa application addressed in those decisions, shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 660 of 2007
| APPLICANT S116 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter, the applicant filed on 26 February 2007 an application seeking orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth), (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal which was made on 14 February 2007 and was posted to the applicant on 15 February 2007.
The Tribunal decided that it did not have jurisdiction to entertain an application for review which was lodged by the applicant on 22 December 2006, and which applied for a review by the Tribunal under Pt.7 of the Migration Act in relation to a decision of a delegate of the Minister made on 11 April 2000. The delegate had refused the applicant’s application for a protection visa which had been lodged on 9 February 2000.
The Tribunal's reason for declining jurisdiction was that the applicant had already applied for review of the delegate's decision, and the Tribunal had already made a decision on his application affirming the delegate's decision. That earlier decision of the Tribunal was dated
13 August 2002 and was handed down on 3 September 2002. As the present Tribunal pointed out in its reasons, the validity of the earlier decision of the Tribunal was upheld in judicial review proceedings brought by the applicant. The applicant's judicial review litigation was extensive, involving two excursions through the lower Courts to the High Court of Australia (see NABE of 2002 v MIMA [2002] FCA 1410, NABE v MIMA [2003] FCA 155, S116 of 2003 v MIMA & Anor [2006] FMCA 119, S116 of 2003 v MIMA [2006] FCA 618, and Applicant S116 of 2003 v MIMA & Anor [2006] HCATrans 698). It is plain from these judgments that the merits of the previous Tribunal's decision, so far as jurisdictional error is concerned, were very thoroughly addressed.
In the course of the applicant’s second round of litigation, he faced a contention that his application was an abuse of process. There appears to have been merit in that contention, although the Courts did not find it necessary to dismiss the proceeding on that basis.
The present application was listed before me at a first Court date on 20 March 2007. The applicant attended and did not need an interpreter. I listed the matter today for a hearing under r.44(12), at which I proposed to address whether an arguable case was shown for the relief sought.
The relief which is sought is, in effect, a writ of mandamus to compel the Tribunal to exercise the jurisdiction which the applicant purported to invoke. In that situation, it is a matter for the Court itself to address whether the Tribunal correctly declined jurisdiction. The Tribunal's reason for declining jurisdiction was that it was functus officio in relation to its function under the Act of reviewing the delegate's decision. The Tribunal referred to long established authority supporting that view, including Jayasinghe v Minister for Immigration (1997) 76 FCR 301.
In my opinion, the Tribunal correctly held that it did not have jurisdiction. The applicant, in my opinion, has no arguable basis for the relief claimed in the present application, and it is plainly hopeless. I consider that it is appropriate to dismiss it under r.44.12(1)(a).
The applicant complains that the Tribunal did not address his submission, which attempted to justify his second application on the basis that he needed more time to complete educational qualifications which he was attempting to achieve in Australia. However, plainly, the Tribunal did not have to address that submission, since it did not have jurisdiction. It was also patently irrelevant to the jurisdiction which was invoked.
The applicant today made no argument to show me why the Tribunal had jurisdiction in his application. He conceded that he had also commenced the present proceeding because he wanted more time to get his qualifications. However, a desire to protract a period of lawful residence in Australia is not a proper reason for bringing litigation which is completely devoid of legal merit.
In all the circumstances shown before me I consider it appropriate, not only to dismiss the application, but also to give a direction to the Registry which will require the applicant to show to me that he has acceptable merits before being permitted to file any further application in this Court relating to his protection visa application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 7 May 2007
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