S231 of 2003 v Minister for Immigration
[2006] FMCA 1322
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S231 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1322 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for reinstatement of judicial review application following dismissal for non appearance – applicant attempting to secure second review of delegate’s decision by the RRT – no serious issue to be tried – reinstatement application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant S231/2003 v RRT [2005] FCA 1665 Jayasinghe v Minister for Immigration & Anor (1997) 76 FCR 301 S231/2003 v Minister for Immigration [2006] FCA 269 SZDMO v Minister for Immigration [2006] FCA 989 SZIIV v Minister for Immigration [2006] FMCA 322 |
| Applicant: | APPLICANT S231 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1919 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms H Dejean Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Minister for Immigration and Multicultural Affairs be substituted as the first respondent to the application.
The reinstatement application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1919 of 2006
| APPLICANT S231 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 30 August 2006.
The application seeks to have set aside orders I made on 9 August 2006. Those orders were, relevantly, to dismiss a judicial review application on account of the applicant’s non-appearance and to make a costs order. The proceeding dismissed was an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).
That application was filed on 11 July 2006 in relation to a decision of the RRT made on 3 July 2006. The applicant asserted notification of the decision on 6 July 2006. I find that the show cause application was filed within time. The show cause application was allocated a first court date of 9.30am on Wednesday, 9 August 2006. The applicant failed to appear on that occasion, and in consequence the application was dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The background to this matter is otherwise conveniently set out in written submissions prepared on behalf of the respondent Minister and filed in my chambers yesterday. I adopt paragraphs 4 to 6 of those written submissions, together with the annexed chronology of events:
The applicant is a citizen of Bangladesh. He lodged an application for a protection visa, which was refused on 26 February 1996. The RRT affirmed that decision on review. The applicant lodged another application for review with the RRT, seeking review of the same decision. On 3 July 2006, the RRT found that it had no jurisdiction to review that decision again.
On 8 August 2006, the first respondent filed a “Response” to the earlier application under rule 44.06 of the Federal Magistrates Court Rules asserting that the earlier application raised no arguable case for the relief claimed.
On 9 August 2006, FM Driver dismissed the earlier application by reason of the applicant’s failure to appear.
Date Event 7 June 1965 Applicant born in Bangladesh
2 June 1995 Applicant arrives in Australia 29 June 1995 Applicant lodges an application for a protection visa
26 February 1996 Delegate of the first respondent refuses Applicant’s application for a protection visa
26 March 1996 Applicant lodges application review of decision of the delegate with the RRT
12 March 1998 RRT decision affirming decision of the delegate
28 May 2003 Applicant files an application seeking constitutional writs in the High Court (remitted instanter to the Federal Court) 17 November 2005 Federal Court dismisses application [Applicant S231/2003 v RRT [2005] FCA 1655, 17 November 2005, per Sackville J] ? Applicant lodges application for leave to appeal decision of Sackville J 1 March 2006 Federal Court dismisses application for leave to appeal [S231/2003 v Minister for Immigration [2006] FCA 269, 1 March 2006, per Rares J] 14 March 2006 Applicant files an application in the RRT seeking review of the same decision of the delegate (ie dated 26 February 1996)
3 July 2006 RRT determines that it has no jurisdiction 11 July 2006 Applicant lodges application in Federal Magistrates Court seeking review of decision of RRT (SYG 1919 of 2006)
9 August 2006 Driver FM dismisses application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 as applicant does not appear
30 August 2006 Applicant lodges present application for reinstatement. Files affidavit sworn on same date stating “I could not attended to the Court on the hearing date as I was not aware about this. I had not received any letter from the Court about hearing date”.
The Minister opposes the reinstatement of the show cause application. The application for reinstatement is supported by a short affidavit.
I received that as evidence for the purposes of today’s hearing. In that affidavit, the applicant deposes that he could not attend court on the first court date as he was not aware of it. He was expecting a letter from the Court to advise about a hearing date.
The applicant did not attend court personally for today’s hearing. However, the Court was successful in contacting him by telephone. The applicant explained that he had been delayed because of problems with the trains. That is plausible in view of severe weather overnight which has reportedly led to train delays. I agreed to hear the applicant by telephone.
The applicant was not required for cross-examination on his affidavit. However, I did seek to clarify with him why he did not understand the need to attend court on 9 August 2006. The applicant told me that he did not read the information written on the show cause application setting out that first court date. He told me that a person at the registry advised him to expect a letter giving a hearing date. It is possible that there was some confusion as between the registry and the applicant about the procedure that would be followed. I understand that Federal Court practice on appeals is to advise return dates by letter. In view of the possibility of confusion, I accept that the applicant has advanced a sufficient explanation for his failure to attend court on 9 August.
However, it is also necessary for me to satisfy myself that the show cause application raises a serious question to be tried. It is clear to me that it does not. The show cause application seeks review of a decision of the RRT that it had no jurisdiction to entertain the review application before it. The RRT found it lacked jurisdiction because a previous RRT had already dealt with a review application. That first decision of the RRT has been found by the Federal Court to be valid. In view of the validity of the first RRT decision, it is plainly correct that the second RRT had no jurisdiction. That has been repeatedly found by this Court, and this Court’s decisions have been upheld on appeal by the Federal Court[1].
[1] see, for example SZDMO v Minister for Immigration [2006] FCA 989
For completeness, I agree with and adopt for the purposes of this judgment paragraph 9 of the Minister’s written submissions:
Further, and in any event, the Court should dismiss the application for reinstatement as the earlier application had no prospect of succeeding for the following reasons, which include those cited in the first respondent’s “Response”:
a)The RRT was correct in finding that it had no jurisdiction to determine the application, as it was, by reason of the RRT’s decision on 12 March 1998, “functus officio” : Jayasinghe v Minister for Immigration & Anor (1997) 76 FCR 301, SZIIV v Minister for Immigration [2006] FMCA 322;
b)the earlier application contains broad complaints of a failure to comply with and properly interpret the law and a failure to exercise jurisdiction. There is nothing in the earlier application which could challenge the correctness of the RRT’s inevitable conclusion that it lacked jurisdiction;
c)the second application to the RRT was an abuse of the RRT’s process. The earlier application to this Court is also an abuse of this Court’s process. This Court was correct to dismiss the earlier application, irrespective of the applicant’s excuses for failing to attend the directions hearing; and
d)the applicant has already applied for judicial review of the first decision of the RRT, via an application for order nisi remitted to the Federal Court (see Applicant S231/2003 v RRT [2005] FCA 165, 17 November 2005, per Sackville J) Sackville J dismissed that application on 17 November 2005. An application for leave to appeal was also dismissed by Rares J (see S231/2003 v Minister for Immigration [2006] FCA 269,1 March 2006). The applicant has had every opportunity to overturn the first decision of the RRT, and has failed. This is further evidence that the application to the RRT, the earlier application, and the present application are all an abuse of process and should not be entertained.
In my view, the show cause application has no prospect of success and hence there is no serious question to be tried. For that reason, I dismiss the reinstatement application filed on 30 August 2006.
Costs should follow the event. The Minister seeks an order for costs fixed in the sum of $700. I accept that that would be an appropriate award. The applicant pleads impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $700.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2006
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