SQDB & Ors v Minister for Immigration
[2007] FMCA 1657
•25 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SQDB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1657 |
| MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) – visa decision of the Tribunal previously upheld by the Federal Court and the High Court – new application dismissed as incompetent and an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), rr.44.06, 44.11(a), 44.12 Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth) |
| SQDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1327 SQDB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 334 SQDB & Ors v MIMIA [2005] HCATrans 107 |
| First Applicant: | SQDB |
| Second Applicant: | SQFB |
| Third Applicant: | SQGB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2701 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 25 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2007 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person |
| Solicitors for the Respondents: | Ms M Palmer of Sparke Helmore |
ORDERS
The applicants pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2701 of 2007
| SQDB, SQFB, SQGB |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
This matter has been before the Courts on three previous occasions. It has been to the Federal Court of Australia initially by an application in which the applicants were represented, an application to the Federal Court for leave to appeal from that decision, and a special leave application to the High Court of Australia. The applicants have been unsuccessful on all three occasions. The applicants also seek an extension of time to file these proceedings. However there is no affidavit material before the Court setting out reasons for that extension. Therefore, I have no option other than to dismiss this application for the following reasons.
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 3 September 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 23 April 2003 and handed down on
20 May 2003 affirming a decision of a delegate of the first respondent refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal, reference NO2/44287. The first applicant filed an affidavit sworn on
3 September 2007 which attached a copy of the Tribunal decision.
The applicants 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 application sets out three grounds of review: that the Tribunal exceeded its jurisdiction, that the Tribunal “declined its jurisdiction” and that the Tribunal breached procedural fairness when it reviewed their application. I note that all these grounds are made without particulars.
The application has not raised an arguable case for relief claimed under r.44.12(1) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). The present proceedings would be prevented by either issue estoppel or Anshun estoppel on the basis of the previous Court proceedings listed below.
There have been previous opportunities to raise all the grounds of judicial review during the earlier proceedings. The Court lacks jurisdiction to hear applications in accordance with r.44.06(2)(a) of the Rules on the following grounds: the application is out of time, the decision of the Tribunal was actually notified to the applicants on 20 May 2003 according to the current application and contrary to the requirements of s.477(1) of the Act, and the applicants did not make an application to this Court within 28 days of notification of the decision.
The applicants seek an extension of time pursuant to s.477(2) of the Act. There have been other judicial review proceedings in relation to the Tribunal decision in accordance with r.44.06 of the Rules. The first respondent opposes the application on the basis of the previous Federal and High Court decisions. An application for judicial review of the Tribunal decision was dismissed by Mansfield J in proceedings number S553 of 2003 and reported in SQDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1327.
The applicants applied for an extension of time and leave to file a notice of appeal from the decision of Mansfield J. However, they were unable to identify any arguable basis for the appeal if leave had been granted.Consequently, that application was dismissed. That was a decision of Selway J in SQDB v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 334. The applicants applied for special leave to the High Court in proceedings A21 of 2004 and reported in SQDB & Ors v MIMIA [2005] HCATrans 107. Leave was refused on 4 March 2005 by Kirby and Gummow JJ. Justice Gummow said:
The respondent emphasises in her written submissions that this application for special leave would challenge the decision of a single judge of the Federal Court and submits that an appeal to this Court would not be competent. Assuming competency, nevertheless we are of the view that there are insufficient prospects of success to warrant any grant of special leave in any event.
I note that the three previous applications were all heard in Adelaide and the applicants were represented at the first hearing before Mansfield J. I believe that all the applicants have done is to file another application in an attempt to start the whole circular process again. The applicants have not raised any new ground of review that has not been put before the Courts on previous occasions. This is nothing more than an attempt to further delay finality of proceedings by misusing the Court's processes. This is clearly an abuse of process. The application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth) which has repealed the Court's previous broad jurisdiction under s.483A of the Act and introduced a new s.476.
At the same time the amendments introduced rule 44.11(a) to the Rules, where the Court may dismiss an application on an interlocutory basis with specific reference to r.44.12. 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 this application has been before the Courts. The Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision.
I believe that even if the applicants had been properly informed in the preparation of their application, they would not benefit from an extension of the time limit. The Tribunal decision was made prior to the introduction of the amendments to the Act which commenced in December 2005. The application was not filed until 3 September 2007 and it is clearly incompetent. I note that no affidavit explaining the delay has been filed. Consequently, the application filed on
3 September 2007 must be dismissed on the ground that it is an abuse of process and, under the Migration Litigation Reform Act 2005, is also incompetent.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 12 November 2007
Corrections
The orders are amended to read:
The application is dismissed as an abuse of process.
The application is dismissed as incompetent.
The applicants pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis fixed in the sum of $2,000.
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