SZAHM v Minister for Immigration
[2005] FMCA 1787
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1787 |
| MIGRATION – Application for summary dismissal – application incompetent – application filed out of time – privative clause decision – affirmed by FCA –special leave to HCA refused – application abuse of process – order made under s.15 Federal Magistrates Act 1999 (Cth) – indemnity costs. |
| Federal Magistrates Act 1999 (Cth), s.15 Migration Act 1958 (Cth), ss.474; 477; 477(1A) |
| SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 445 SZDCJ vMinister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1500 |
| Applicant: | SZAHM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1967 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 October 2005 |
| Date of Last Submission: | 12 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Counsel for the First Respondent: | Ms A.Nesbitt, Sparke Helmore |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Application filed 25 July 2005 is dismissed.
That the Applicant is precluded from filing any further application for review of the Tribunal’s decision without leave of this Court.
That the Applicant pay the Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1967 of 2005
| SZAHM |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the First Respondent, pursuant to a notice of motion filed on 15 August 2005, in which the First Respondent seeks dismissal of the Applicant’s application, filed in this Court on 25 July 2005 (“the Application”), on the basis that the Application was filed in excess of 28 days period provided for in s.477(1A) of the Migration Act1958 (Cth) (“the Act”) of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 March 2003. The First Respondent contends that the decision of the Tribunal is a privative clause decision, and this Court has no jurisdiction to entertain the Application.
On 11 August 2005, the First Respondent filed a notice of objection to competency.
The First Respondent referred to SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 445 in submitting that the Court ought, pursuant to s.477 of the Act, to determine first the competency of the application filed on 25 July 2005.
The First Respondent read the affidavit of Jennifer Bautista sworn 12 August 2005, and filed 15 August 2005. Annexed to this affidavit is a copy of the Applicant’s application filed in the Federal Magistrates Court on 25 March 2003, seeking review of the Tribunal’s decision of 6 March 2003, affirming the delegate’s decision to refuse a protection visa.
On 24 November 2003, Raphael FM delivered his judgment in respect of that application. Raphael FM determined that:
“There is no suggestion that the Tribunal fell into any error of law, let alone jurisdictional error, in a matter in which it came to its conclusion in this particular case.”
In those circumstances, the decision of the Tribunal is a privative clause decision pursuant to s.474 of the Act.
On 12 January 2004, the Applicant filed a notice of appeal in the Federal Court of Australia in respect of Raphael FM’s decision.
On 22 April 2004, Dowsett J determined that the appeal must be dismissed and that none of the grounds upon which the Applicant relied disclosed a proper basis for review. The consequence of Dowsett’s J decision was a confirmation of the Tribunal’s decision being a privative clause decision.
On 20 May 2004, the Applicant filed an application for special leave to appeal in the High Court of Australia from the decision of Dowsett J. On 3 March 2005, the Applicant’s application for special leave was refused. McHugh J concluded the following:
“The Federal Magistrates Court rejected an application for judicial review because no jurisdictional error was identified. The Federal Court dismissed an appeal on similar grounds. The applicant’s application for special leave to appeal does not identify any arguable jurisdictional error on the part of the Tribunal, or any error in the Federal Court’s reasoning.”
In the circumstances, there has been a final determination of the issue between the parties as to whether the Tribunal’s decision is a privative clause decision. The final determination of that issue is that the Tribunal’s decision is a privative clause decision. In those circumstances, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere in such a decision. In any event, the doctrine of res judicata applies to bar the Applicant from bringing further proceedings in respect of the same cause of action (Chamberlain v Deputy Commissioner of Taxation (1987-8) 164 CLR 502 at 510-11).
Notice of objection to competency
Moreover, this Court can only conduct judicial review in respect of a Tribunal decision where an application for judicial review is filed within 28 days of the Tribunal’s decision. Section 477 of the Act provides that the Federal Magistrates Court has no jurisdiction to entertain an application that is filed outside the 28 day time limit provided for by s.477 of the Act. The Tribunal’s decision is dated 6 March 2003.
The Applicant filed the Application in this Court on 25 July 2005. That Application is plainly filed well in excess of 28 days of the Tribunal’s decision and is a privative clause decision. Accordingly, the Application before this Court is incompetent and is therefore dismissed.
Application pursuant to s.15 of the Federal Magistrates Act 1999 (Cth)
Further, the First Respondent seeks an order that the Applicant not institute any further proceeding without leave of the Court. The Respondent relies on s.15 of the Federal Magistrates Act 1999 (Cth) and referred the Court to SZDCJ vMinister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1500 at [29], where Jacobson J confirmed the Federal Magistrates Court power to make such an order.
It is plain from the procedural history of this matter that there have been a number of attempts by the Applicant to seek judicial review of the Tribunal’s decision. Judicial review of the Tribunal’s decision has been considered comprehensively by both the Federal Magistrates Court of Australia and the Federal Court of Australia. Special leave to the High Court of Australia was refused. On 25 July 2005, the Applicant commenced the same proceeding again in this Court.
I have regard to the comments of McHugh J, made in his refusal to grant special leave, that the Applicant’s application for special leave to appeal did not identify any arguable jurisdictional error on the part of the Tribunal, or any error in the Federal Court’s reasoning. In the circumstances, in light of the past proceedings and the final determination of that issue, it was an abuse of process for the Applicant to file the Application on 25 July 2005 in this Court in respect of the same issue.
In those circumstances, I am satisfied that it is appropriate to make an order precluding the Applicant from filing any further application for review of the Tribunal’s decision without leave of the Court.
Accordingly, the Application filed in this Court on 25 July 2005 is dismissed with costs.
Application for indemnity costs
The First Respondent seeks an indemnity costs order in an amount of $3900 in respect of her motion this morning. Having regard to the reasons for the dismissal of the Application and the conclusion of this Court that the filing of the Application was otherwise an abuse of process, I am satisfied it is appropriate that such an order be made.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 17 November 2005
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