S505 of 2003 v Minister for Immigration
[2006] FMCA 1012
•6 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S505 of 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 1012 |
| MIGRATION – Application to review decision of delegate of respondent – whether primary decision – application incompetent. |
| Migration Act 1958 (Cth), s.476 Federal Magistrate Courts Rules 2001, r.13.10 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 Walton v Gardiner (1993) 177 CLR 178 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCR 495 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 |
| Applicant: | APPLICANT S505 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG293 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application for judicial review filed on 30 January 2006 be dismissed as incompetent.
That in the alternative the application be dismissed as an abuse of process pursuant to Rule 13.10A(c) of the Federal Magistrates Court Rules 2001.
That the applicant pay the costs of the respondent fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG293 of 2006
| APPLICANT S505 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The matter comes before the Court by way of a notice of motion filed by the respondent in relation to an application filed in this Court by the applicant on 30 January 2006. The applicant sought review of a decision of a delegate of the respondent not to grant him a protection visa. That decision was made on 5 May 2000 and in his application to this Court the applicant indicated that the decision was notified to him on 5 May 2000.
As the proceedings by the applicant were commenced after 1 December 2005, the amendments to the Migration Act 1958 (Cth) introduced at that time, in particular s.476 of the Act, apply to these proceedings.
The first and primary ground relied on by the respondent is that the Court has no jurisdiction to review the delegate's decision because s.476(2) of the Migration Act applies. By notice of motion filed on
20 March 2006 the respondent seeks that the application for judicial review be dismissed on that ground. In the alternative it is sought that, as there have been other judicial review proceedings, the application should be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 either as an abuse of process, frivolous or vexatious, or on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
I note in this respect that this ground was first raised in the respondent's response of 9 February 2006. The hearing of the foreshadowed notice of motion seeking summary dismissal was set for today in a directions hearing on 28 February 2006. While the applicant has had ample opportunity to consider his position he has not filed written submissions or presented any argument to establish jurisdiction on the part of the Court.
Section 476(2)(a) of the Migration Act 1958 relevantly provides that the Federal Magistrates Court has no jurisdiction in relation to a primary decision. "Primary decision" is defined in s.476(4) to mean a privative clause decision or a purported privative clause decision that is reviewable under Part 5 or 7 or section 500 whether or not it has been reviewed.
The decision of the delegate of which the applicant now seeks review was reviewable under Part 7 and indeed was so reviewed by the Refugee Review Tribunal. Hence it is a primary decision within s.476(2)(a). The Court's jurisdiction is therefore excluded and I must dismiss the application as incompetent.
This is sufficient to dispose of these proceedings. However if I am wrong in my conclusion that the Court has no jurisdiction I would in any event dismiss the present proceedings as an abuse of process of the Court.
The applicant had and took advantage of his right to have his application considered by way of merits review by the Refugee Review Tribunal. On 21 November 2002 the Tribunal affirmed the decision of the delegate of the respondent to refuse the applicant a protection visa. It is established that a Tribunal decision such as a decision of the Refugee Review Tribunal will cure jurisdictional errors in a primary decision; see Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294, Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCR 495, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58.
Moreover, after the Tribunal decision, the applicant in fact sought judicial review of that decision. He filed an application for an order nisi in the High Court of Australia on 17 September 2003. Those proceedings were remitted to the Federal Court and dismissed on
4 November 2004. The applicant sought leave to appeal. That application was refused on 22 December 2004. The applicant then filed an application for special leave to appeal in the High Court on
20 January 2005. On 17 November 2005 Hayne and Callinan JJ dismissed the application for special leave to appeal to the High Court. Thereafter the applicant commenced the proceedings in this Court to review the delegate's decision.
In these circumstances, where the applicant's application to review the delegate's decision must fail because of principles considered in Zubair and other cases, and where the applicant has exercised his right to seek judicial review of the Tribunal decision, to now come to this Court and seek a further review is such as to constitute an abuse of process. The proceedings are unjustifiably vexatious and oppressive on the respondent. Allowing them to continue would bring the administration of justice into disrepute. See Walton v Gardiner (1993) 177 CLR 178. I have had regard to all of the circumstances before me in exercising my discretion including the underlying public interest that there be finality in litigation and that a party should not be vexed over and over again in relation to the same matter.
In light of the applicant's litigation history in this case I consider it is an appropriate case in which to infer that the present application has been filed for the purpose of extending the period of his stay in Australia. In all of the circumstances, if I am wrong in finding that the Court has no jurisdiction, I would dismiss the proceedings as an abuse of process. It is therefore not necessary to consider the alternative bases under Rule 13.10 of the Federal Magistrates Court Rules 2001. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful in that his application is to be dismissed. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant claims that he is not working and unable to pay the amount of $2,800 which is sought, but his impecuniosity is not a reason for not awarding costs in the appropriate case.
The respondent seeks costs on an indemnity basis and in light of my findings that this application constitutes an abuse of process I consider that this is a case in which it is appropriate to award costs on the basis sought.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 21 July 2006
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