S193 of 2003 v Minister for Immigration
[2006] FMCA 686
•9 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S193 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 686 |
| MIGRATION – Application for review of Refugee Review Tribunal – refusal of a protection (Class AZ) visa – decision of the Tribunal previously upheld by the Federal Court on two occasions – new application dismissed as an abuse of process and incompetent under the provision of the Migration Litigation Reform Act 2005 (Cth). |
| Federal Magistrates Court Rules 2001 (Cth), rr. 10.01, 13.10 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth) |
| Applicant S193 of 2003 v Minister for Immigration [2005] FCA 1562 Applicant S193 of 2003 v Minister for Immigration [2006] FCA 241 |
| Applicant: | APPLICANT S193 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG895 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the aid of a Bengali interpreter |
| Advocate for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 27 March 2006 is incompetent and is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $650 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG895 of 2006
| APPLICANT S193 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
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 27 March 2006 for juridical review of the decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 20 September 2000 and handed down on 10 October 2000, affirming a decision of a delegate of the first respondent made on 23 March 1998, refusing to grant the applicant a Protection (Class AZ) Visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal, numbered N98/22773.The applicant filed an affidavit sworn on
27 March 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 six un-particularised grounds of review:
1.The Tribunal denied the applicant’s procedural fairness denying taking any evidence from vital witness of the applicant. The Tribunal breach the sections 426 and 427 1(a)(d) 2 and 3.
2.The procedure that was required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision was observed.
3.The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the imaginary information which has never linked with the applicant fear of persecution.
4.The Tribunal failed to take relevant consideration into account in exercising its power to determine me as a refugee.
5.That the decision involved a jurisdictional error, involving an incorrect interpretation of the applicable law and procedure.
6.The Tribunal decision was unjust and its made without taking in to account full gravity of the circumstances and consequences of the applicant’s persecution.
Under the application heading “Other Court Proceedings” the applicant mentions a High Court and two Federal Court proceedings.
a)Applicant S193 of 2003 v Minister for Immigration [2005] FCA 1562 (4 November 2005)
This is a decision of Bennett J, where Her Honour made the following findings at [10]:
I have considered the papers filed in this case including the applicant’s submissions. Having considered the decision of the Tribunal I do not think that any of the grounds referred to by the applicant is fairly arguable in this case. Accordingly it would be inappropriate to grant an order nisi.
b)Applicant S193 of 2003 v Minister for Immigration [2006] FCA 241 (16 March 2006)
This is a decision of Conti J, where His Honour found at [4]:
In his oral address to the Court, the applicant was unable to distil any viable basis for reversing in whole or in part the reasons for judgment of Bennett J handed down on 4 November 2005, such as to justify the grant of leave to appeal. In particular no viable submission was made to me demonstrative of any error of law in her Honour’s approach or reasoning, either in the applicant’s written submissions filed on 3 March 2006 or otherwise in oral address. The written submissions constituted in substance or reality a rehearsal of complaints as to the Tribunal’s findings upon the factual merits or otherwise of the Tribunal’s findings.
However, I am also of the understanding that there are further matters decided by the Federal Court and the High Court.
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 final 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 s.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, 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 due to the multiple times the applicant has been before the Courts referred to above. The Federal Court has on two occasions determined there is no jurisdictional error in the Tribunal’s decision. There may be circumstances where that finding has also been made in three additional proceedings.
The other significant problem facing the applicant is in relation to time, as these proceedings have been 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 the time limit provided 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 purposes of determining the operation of this provision, I will take that notification to have occurred on 1 December 2005, although it is quite apparent that the Tribunal decision was dated 10 October 2000.
The application does not seek 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 23 February 2006, 84 days from the commencement of the amended provisions. This application was not filed until 27 March 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.
I note that there is no affidavit explaining the delay. Consequently, the application filed on 27 March 2006 must be dismissed on the grounds that it is an abuse of process. Under the provisions of the Migration Litigation Reform Act it is also incompetent.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 May 2006
0
2
4