SZAJB v Minister for Immigration
[2007] FMCA 1383
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1383 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – previous applications – res judicata. PRACTICE & PROCEDURE – Abuse of process – incompetent – out of time. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477 Federal Magistrates Court Rules 2001, r.13.11 |
| SZAJB v Minister for Immigration [2004] FMCA 86 SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 782 SZDPF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 85 SZAJB v Minister for Immigration & Anor [2006] FMCA 964 |
| Applicant: | SZAJB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1905 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2007 |
| Date of last submission: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Dooley |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed as incompetent.
The Application is dismissed as an abuse of process.
The Applicant is to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $1,300.00.
No further application for review of the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on
21 March 2003 is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1905 of 2007
| SZAJB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal that was made on 28th February 2003 and handed down on 21st March 2003. The Applicant says in his application that he was notified of the decision on 28th March 2003. He applies for an order that the time for making the application be extended under s.477 of the Migration Act.
It can clearly be seen that the application is out of time in that it was not filed within 28 days of actual notification of the Tribunal decision. Sub-s.477(1) of the Migration Act requires that an application for review be filed within 28 days of the actual notification. Transitional provisions in fact deem matters prior to 1st December 2005 to have been notified on 1st December 2005. Even so, the application is out of time. Item 42 of the Migration Litigation Reform Act makes that very clear. Thus, the Court's power to extend the time for filing by 56 days under the provisions of sub-s.477(2)(a) of the Migration Act does not apply. The application for an extension of time would need to be made within 84 days of actual notification of the Tribunal decision.
In such a case the last day on which this application could have been made was 23rd February 2006. Solicitors for the Respondent submit, and correctly, that the Court has no jurisdiction to hear the application.
The Applicant claims that he has been misled by his migration agent who is no longer a migration agent. That may be the case, but the fact is that the Applicant has already sought review of the Tribunal decision on two previous occasions. On 20th February 2004 Raphael FM dismissed the application with costs. The citation is SZAJB v Minister for Immigration [2004] FMCA 86.
The Applicant appealed against that decision and on 8th June 2004 in the Federal Court Branson J dismissed the appeal. The citation for that decision is SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 782. The Applicant then sought special leave to appeal to the High Court of Australia. That application was dismissed with costs on 23rd August 2004, but the Applicant brought a further special leave to appeal on 7th September 2004. That application was refused by Hayne and Heydon JJ on 10th March 2006.
On 30th March 2006 the Applicant then brought a fresh application to the Federal Magistrates Court. The solicitors for the Respondent filed a Notice of Motion on 16th May 2006. That application was heard again by Raphael FM on 29th June 2006. His Honour referred to the previous proceedings and to the amendment to s.477 of the Migration Act, which became operative on 1st December. His Honour found that the application was out of time, but also noted that the bringing of the claim would appear to be barred by reason of the principles of res judicata, referring to SZDPF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 85, as all the issues to be tried between the parties had already been tried.
The Applicant today of course has raised concerns about his migration agent, but he has sought to argue that on two previous occasions. In the proceedings before Raphael FM on 29th June 2006, SZAJB v Minister for Immigration & Anor [2006] FMCA 964, his Honour said at [7]:
Before me today the applicant told me that the reason that he had filed the current proceedings was because of the manner in which he had been let down by his migration agent. Unfortunately for him this is not a new argument. I know that I dealt with the problems relating to the migration agent in paragraph 13 of my judgment of 29 February 2004 where I referred to M172 v the Minister [2004] FMCA 23 and B41 of 2003 [2004] FCA 30.
The Applicant has raised this argument a third time, although I note it was not mentioned in his supporting affidavit.
In any event, on 29th June 2006 Raphael FM dismissed the application with costs. The Applicant then brought an application for leave to appeal on 20th July 2006 in the Full Court of the Federal Court. On 14th September 2006 Jessup J dismissed that application with costs. Again the Applicant sought special leave to appeal to the High Court of Australia, this time on 11th October 2006. That application for special leave to appeal was dismissed by Hayne and Crennan JJ on 24th May 2007. The Applicant then commenced these proceedings.
This is a matter where the Applicant is endeavouring to go around the circuit for the third time. Apart from the fact that the application is out of time and the Court has no jurisdiction, the application is a most blatant abuse of process. It will be dismissed. I note that the reason why this application has been able to be dealt with at the First Court Date is that the solicitors for the Respondent Minister, and in particular Ms Megan Palmer of Sparke Helmore Lawyers, acted extremely promptly in filing a Response setting out all of these points and in fact filing an outline of submissions a week before the matter was due to come to Court. This promptness in dealing with an obvious abuse of process is to be commended.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V .Lee
Date: 14 August 2007
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