S505 of 2003 v Minister for Immigration

[2008] FMCA 1263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S505 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1263

MIGRATION – Summary dismissal – multiple applications.

Migration Act 1958, s.412(1)(b)
Federal Magistrates Court Rules 2001

Applicant: APPLICANT S505 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1945 of 2008

Judgment of: Raphael FM

Hearing date: 27 August 2008

Date of Last Submission: 27 August 2008

Delivered at: Sydney

Delivered on: 27 August 2008

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001.

2. The applicant shall pay the first respondent's costs assessed in the sum of $2,500.00.

3. The applicant may not institute any proceedings against the Minister for Immigration & Citizenship, his delegate or the Refugee Review Tribunal relating to or arising out of the decision of the delegate dated 5 May 2000 without leave of the court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1945 of 2008

APPLICANT S505 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the Minister for summary judgment dismissing an application for review of the Refugee Review Tribunal filed by the applicant on 28 July 2008. The decision of the Refugee Review Tribunal in respect of which the applicant seeks a review was signed on 2 July 2008. The decision of the Tribunal was that in all the circumstances of the case it had no jurisdiction to hear the application. This is because the decision of the delegate, which the applicant sought to have reviewed, was made on 5 May 2000 and the applicant had already sought review from the Refugee Review Tribunal which affirmed the delegate's decision on 21 November 2002, thus the application for review with which I am concerned was made out of time, see s.412(1)(b) Migration Act 1958 (the “Act”) and Regulation 4.31 of the Migration Regulations 1994 (the “Regulations”).

2. It was also deficient because it was the second application for review of a delegate's decision and as the Tribunal noted in its reasons for decision:

   “The Tribunal cannot accept a second application for review of the same RRT reviewable decision.”

3. In the affidavit of Nicola Johnson sworn on 13 October 2008 she sets out a very helpful chronology which indicates that since the original decision of the review on 21 November 2002 by the RRT this matter has been to the High Court twice, the Federal Court three times and this is the third time it has come to this court.  To indicate that the application is an abuse of the process would hardly be an exaggeration. The applicant's grounds for the application are threefold.  He states:

   i)The RRT denied proper application of law to the applicant;

   ii)The RRT denied natural justice to the applicant;

   iii)The RRT did not follow due procedure.

4. No particulars of any of these allegations are supplied. It is quite clear to me that this application has no reasonable prospects of success and should be dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (the “Rules”). I would also add that in my view it is an abuse of the processes of this court in the manner in which it is made and I could equally dismiss it under Part 13 Rule 13.10(c) of the Rules.

5. The respondent asks me to make an order for indemnity costs against the applicant. I can see no utility in this. An examination of the chronology would indicate that in the six previous court decisions a costs order would have been made against the applicant which has either not been enforced or has been incapable of enforcement.

6. Without wishing to be in any way critical of the Department, who may not at the time have been entirely aware of the applicant's perseverance, I cannot understand why efforts to remove him from the country were not made following the decision of the High Court on 17 November 2005 and before his further application to this court on 30 January 2006 or more significantly why no such efforts were made between 8 June 2007 when his Federal Court application was dismissed by Moore J for non appearance and 18 June 2008 when he launched the application to the RRT which is currently the subject of the hearing today. Certainly by that time the Department would have been well aware that this applicant had every intention of staying in this country for as long as possible. 

7. I dismiss the application pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001. The applicant shall pay the first respondent's costs assessed in the sum of $2500.00.  The applicant may not institute any proceedings against the Minister for Immigration & Citizenship, his delegate or the Refugee Review Tribunal relating to or arising out of the decision of the delegate dated 5 May 2000 without leave of the court.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: