SZAFD v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFD v MINISTER FOR IMMIGRATION [2007] FMCA 182

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Federal Magistrates Court has jurisdiction to hear application for judicial review.

Federal Magistrates Court Rules 2001 r.44.12
Migration Act 1958 (Cth), ss.477; 477(2); 477(3)
Migration Litigation Reform Act 2005 (Cth)

Applicant: SZAFD

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File number: SYG22 of 2007

Judgment of: Emmett FM

Hearing date: 20 February 2007

Date of last submission: 20 February 2007

Delivered at: Sydney

Delivered on: 20 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitor for the Respondent: Mr P. Reynolds, Clayton Utz

ORDERS

1. That the applicant pay the costs of the first respondent fixed in the amount of $2500.

2. That the name of the first respondent be amended to Minister for Immigration and Citizenship.

3. Direct the registry not to enter any orders in respect of this matter until my ex tempore reasons have been settled.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG22 of 2007

SZAFD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. This matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 on 15 February 2007 in respect of the application filed by the applicant in this Court on

   
   

   3 January 2007 seeking judicial review of a decision of the Refugee Review Tribunal dated 7 January 2003. 

2. The first respondent filed a response on 10 January 2007 identifying previous litigation between the applicant and the first respondent in respect of judicial review of the same tribunal decision.

3. The first respondent read the affidavit of Patrick David Reynolds, sworn 19 February 2007, together with the exhibit to that affidavit marked PDR1.  PDR1 contains a copy of the applicant's application filed in this Court on 25 February 2003 seeking judicial review of the Tribunal's decision, the subject of this proceeding. 

4. That application was heard and determined by this Court on

   
   

   24 September 2003 and the applicant appeared at that hearing.  There were then subsequent appeals in respect of the decision of the Federal Magistrates Court. On 16 December 2003, the Federal Court of Australia dismissed the appeal. On 5 August 2007 the High Court of Australia, dismissed a special leave application lodged by the applicant.

5. In the circumstances, it is clear that the applicant was notified of the decision of the Refugee Review Tribunal at least by 25 February 2003.  Moreover the applicant's application filed on 3 January 2007 in this Court states:

   That the applicant was notified of the decision on 8 January 2003.

6. Section 477 of the Migration Act 1958 (Cth) provides that:

   “An application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court's original jurisdiction under section 476 in relation to a migration decision must be made to the Court within 28 days of the actual (as opposed to the deemed)…