SZAJB v Minister for Immigration
[2006] FMCA 964
•29 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 964 |
| MIGRATION – Where applicant unsuccessfully appealed FMC decision to Federal Court − where applicant unsuccessfully sought special leave to appeal Federal Court decision after draft order nisi in High Court dismissed − where current application out of time under s.477 − whether application barred by principle of res judicata. |
| Migration Act 1958, s.477 |
| SZAJB v Minister for Immigration [2004] FMCA 86 SZAJB v Minister for Immigration [2004] FMCA782 SZDPF v the Minister [2006] FCAFC 85 M172 v the Minister [2004] FMCA 23 B41 of 2003 [2004] FCA 30 |
| Applicant: | SZAJB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 944 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 June 2006 |
| Date of Last Submission: | 29 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2006 |
REPRESENTATION
| Applicant In Person |
| Solicitors for the Respondents: | Nicola Johnson Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,950.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 944 of 2006
| SZAJB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by way of Notice of Motion issued by the Minister for me to summarily dismiss an application filed in this court on 30 March 2006 by the present applicant who sought review of a decision of the Refugee Review Tribunal handed down on 2 March 2003.
This is not the first time I have had the pleasure of seeing this particular applicant in my court. On 20 February 2004 I handed down a decision (SZAJB v the Minister [2004] FMCA 86) dismissing an application to review the very same decision of the Tribunal.
The applicant was dissatisfied with the views which I had expressed in that judgment and appealed it to the Federal Court. On 8 June 2004, her Honour Branson J determined the appeal in favour of the Minister in SZAJB v Minister for Immigration [2004] FCA 782, saying at [4]:
“The court sits to review the decision of the Federal Magistrate for possible error. No error on the part of the Federal Magistrate has been identified. The appeal must therefore be dismissed with costs.”
According to the chronology kindly provided to me by the Minister and defined as Exhibit A to the affidavit of Nicola Johnson, dated 27 April 2006, the applicant then filed a draft order nisi in the High Court of Australia on 1 July 2004. That draft order nisi was dismissed by Heydon J on 23 August 2004. Ever resourceful, the applicant then sought leave to appeal the decision of Branson J by way of an application for special leave. This was filed on 7 September 2004 and finally dismissed by their Honours Hayne and Heydon JJ on 10 March 2006. The applicant, on 30 March 2006, filed this current application.
Whilst these legal processes were taking place the Parliament of Australia passed an amendment to s.477 of the Migration Act 1958, which became operative on 1 December 2005. Section 477 of the Migration Act now reads as follows:
“s.477 Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under s.476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The effect of this section is that the applicant was deemed to have received the decision of the Tribunal, which is the subject matter of the present application, on 1 December 2005 and had 28 days thereafter to file an application or possibly a further 56 days if I, or another Federal Magistrate, had consented to an extension. No extension was applied for but in any event the total of 84 days had expired prior to 30 March 2006. This means that the application made on 30 March is ineffective and the court is not allowed to consider it.
That should conclude the matter, but I would also note that the bringing of this claim would appear to be barred by reason of the principles of res judicata (SZDPF v the Minister [2006] FCAFC 85), as all the issues to be tried between the parties have already been tried.
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 application is dismissed. The applicant is ordered to pay the respondent's costs which I assess in the sum of $1,950.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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