S208 of 2003 v Minister for Immigration

Case •

[2006] FMCA 576

•

12 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S208 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 576

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa.

PRACTICE & PROCEDURE – Application to show cause.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth), sch.1
Federal Magistrates Court Rules 2001 r.44.12
Applicant S208 of 2003 v Refugee Review Tribunal [2005] FCA 1563
 Applicant S208 of 2003 v Minister for Immigration Multicultural & Indigenous Affairs [2005] FCA 1772
Applicant: APPLICANT S208 OF 2003
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 241 of 2006
Judgment of: Scarlett FM
Hearing date: 12 April 2006
Date of Last Submission: 12 April 2006
Delivered at: Sydney
Delivered on: 12 April 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The application is not competent.

  2. Applicant for extension is refused.

  3. The application is dismissed as an abuse of process.

  4. The Applicant is restrained from filing any application for review of the decision of the Refugee Review Tribunal made on 15 January 1999 at any Registry of this Court without leave.

  5. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 241 of 2006

S208 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for an order to show cause pursuant to r.44.12 of the Federal Magistrates Court Rules 2001. 

  2. The substantive applicant filed an application on 23rd January 2006 for review of a decision of the Refugee Review Tribunal made on


    15th January 1999.   That decision affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

  3. The first respondent Minister seeks orders that the applicant be refused an extension of time for his application to be competent, as it has been filed outside the 28 day period required by s.477 of the Migration Act.

  4. The reasons why the Minister seeks that the applicant should be refused an extension of time are that the applicant has brought previous proceedings in other Courts against the decision of the Refugee Review Tribunal.

  5. In fact, the Minister submits that on the basis of the previous proceedings, the present application is an abuse of process. 


    The circumstances which led to this contention are that the applicant was originally a party to the Muin and Li class action in the High Court of Australia.

  6. On 22nd May 2003, over four years after the decision was handed down by the Refugee Review Tribunal, the applicant commenced proceedings in the High Court of Australia seeking orders nisi in respect of the RRT decision.   That application, in his own name, was given a pseudonym being Applicant S208 of 2003. 

  7. Those proceedings were remitted to the Federal Court of Australia and on 6th January 2005 the applicant filed written submissions with the Federal Court setting out why he sought the orders nisi. 

  8. On 12th January 2005 the applicant filed a further affidavit, a copy of which forms annexure C to the affidavit of Andras Markus, Solicitor, filed in this Court on 13th February 2006.  In the applicant's affidavit he sets out reasons why he claims there is an arguable case to make an order nisi. 

  9. Those matters were considered by Bennett J in the Federal Court who gave judgment on 4th November 2005 refusing the application for an order nisi.   A copy of her Honour's reasons and orders forms annexure D to the affidavit of Mr Markus. 

  10. The Federal Court citation is Applicant S208 of 2003 v Refugee Review Tribunal [2005] FCA 1563. The applicant then sought leave to appeal against this decision. He filed his application for leave to appeal on 24th November 2005. 

  11. On 8th December 2005, in the Federal Court, Wilcox J dismissed that application with costs.  I refer to Applicant S208 of 2003 v Minister for Immigration Multicultural & Indigenous Affairs [2005] FCA 1772.


    His Honour noted that the applicant had not attended at the Court, nor had any explanation been provided.

  12. What the applicant then did was commence fresh proceedings on


    23rd January 2006 in this Court. By this stage more than seven years had elapsed since the decision of the Refugee Review Tribunal had been handed down. The respondent submits that under the provisions of s.477 of the Migration Act, the application was filed outside the 28 day period required by sub-s.1.

  13. Under pt.2 of item 42 of sch.1 of the Migration Litigation Reform Act 2005, for the purpose of s.477 of the Migration Act, the applicant is taken to have been actually notified of the decision on


    1st December 2005.  He should, therefore, have filed his application if he had any substantive grounds by 28th December.  Clearly, he did not.

  14. The circumstances to my mind are such that the Court will not grant an extension of time.  The reason is quite clear, that the applicant has already sought review of this decision in the High Court of Australia, and in the Federal Court.  He has gone as far as having an application for leave to appeal dismissed. 

  15. It is quite clear that this fresh application to this Court has been brought about for an ancillary purpose, which would be connected to the applicant's bridging visa.

  16. The entire circumstances make it clear that this application is an abuse of process.  I do not propose to grant an extension of time.  I will find that the application is not competent, and in any event it would be dismissed as an abuse of process.

  17. As the application has been found to be unsuccessful and has been found to be an abuse of process, in my view it is appropriate to make an order for costs.  The sum of $1,500.00 is in my mind well within the scale.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  20 April 2006

Actions
Download as PDF Download as Word Document