SZAKU v Minister for Immigration

[2006] FMCA 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 909

MIGRATION – Refugee – application filed out of time – no jurisdiction to hear the application – application dismissed.

Migration Act 1958, s.477
Migration Litigation Reform Act 2005, Sch.1 cl42(1)
Federal Magistrate Court Rules 2001, rr.13.10(b), 13.10(c)

SZAKU v Minister for Immigration [2004] FMCA 188

Applicant: SZAKU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 786 of 2006

Judgment of: Nicholls FM

Hearing date: 27 June 2006

Date of Last Submission: 7 April 2006

Delivered at: Sydney

Delivered on: 27 June 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. E. Palmer

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed for lack of jurisdiction.

2. The applicant not file any further application in relation to the decision of the Refugee Review Tribunal made on 11 March 2003, and notified to the applicant on 3 April 2003, and the decision of the delegate of the respondent Minister made 10 May 2001, without leave of the Court.

3. The applicant pay the first respondent’s costs set in the amount of $2,500.

By Direction:

1. The District Registrar of this Court in New South Wales notify the Registrar of the Court in the Australian Capital Territory of the existence of, in particular, order 2 made today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 786 of 2006

SZAKU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 13 March 2006 seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 March 2003 to affirm the decision of the delegate of the respondent Minister made on 10 May 2001 to refuse a protection visa to the applicant) should not be granted in the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act 1958 (“the Act”).

2. The respondent Minister in these proceedings has filed written submissions and an affidavit in support of the Response, arguing that the proceedings be dismissed pursuant to Rule 13.10(b) and/or Rule 13.10(c) of the Federal Magistrate Court Rules 2001 (“the Rules”) on the grounds that they are vexatious and/or are an abuse of the process of the Court. Further, in the alternative, that the applicant is barred by res judicata and/or is estopped from bringing the proceedings.

3. When the matter was called today the applicant did not appear. Ms. Palmer, who appeared for the Minister, advised from the Bar table that she had received a message that morning from the applicant, indicating that he was unable to attend Court because he was “sick”. Nothing by way of evidence, or even any communication, has been put before the Court by the applicant to explain the failure to appear. The applicant attended at the first Court date in this matter on 13 April 2006 before a Registrar of the Court. Notwithstanding (as set out below) the jurisdictional issue, the matter was set down for the hearing of the respondent’s application for summary dismissal. An earlier date for the hearing was initially provided to the parties, but the applicant was subsequently notified that the hearing date had been rescheduled to a later date. This notification was by letter, sent by the Court, to his address for service and dated 25 May 2006 (a copy of which is in the Court’s correspondence folder in the relevant file). The matter was set down for hearing at 10.15 a.m., 27 June 2006 (today’s date). The location of the Court was clearly set out.

4. Before turning to the application for summary dismissal there is, of course, the preliminary question of the Court’s jurisdiction to hear the applicant’s application. Amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), provide time limits to be applied to the filing of applications before this Court. Section s.477 of the Act provides:

   “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 section 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.”

5. The applicant’s application, filed on 13 March 2006, states that the applicant received actual notification of the decision on 3 April 2003. In an affidavit (and it is not apparent on its face whether it was sworn or affirmed) made on 10 March 2006 by the applicant, and filed in this Court on 13 March 2006, the applicant states:

   “Statutory time has passed to file this application to the Honourable Court.”

   The affidavit asserts that the applicant believes that the relevant time should be extended, and that details will be submitted at the time of hearing.

6. In this regard I also note the affidavit of Ellie Jane Palmer, a solicitor in the employ of the respondent’s solicitors, sworn 7 April 2006, that was read into evidence before me today. Annexure “B” to that affidavit is a copy of a previous application filed by the applicant, on 28 April 2003, in the Federal Magistrates Court of Australia (I note this has been clearly erroneously described as the Federal Court of Australia in Ms. Palmer’s affidavit) complaining about the same Tribunal decision as is before me today (see annexure “A” to the affidavit and the annexure to the applicant’s affidavit made 10 March 2006). This application was dismissed by Federal Magistrate Driver on 24 March 2004 (see SZAKU v Minister for Immigration [2004] FMCA 188). That application asserts that the applicant was notified of the Tribunal’s decision on
   3 April 2003. The filing of that application in the Federal Magistrates Court on 28 April 2003 is clearly confirmation that actual notification of the Tribunal’s decision of 11 March 2003 was effected as at least at that date if not, as asserted, on 3 April 2003.

7. I note here, that irrespective of that actual notice in 2003, Sch.1 cl.42(a) of the reform Act provides transitional provisions for decisions made before the commencement day of the Act (1 December 2005) in the following terms:

   “Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:

   (a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and

   (b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and

   (c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”

8. The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (as it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005
   (28 December 2006) and no extension of time is given

   extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to

   
   

   24 February 2006), the application is incompetent before this Court. I note here that the application was filed on 13 March 2006, after the maximum grace period allowable under the transitional provisions.

9. In these circumstances, I dismiss the application on the basis that the Court has no jurisdiction to proceed. Even if the applicant had appeared today to argue for an extension of time within which to file his application, the Court’s discretion would extend only to provide an extension until 24 February 2006. The application was clearly filed after that date.

10. I also note for the applicant’s benefit that had there been no issue of jurisdiction I would likely have dismissed the application summarily, as sought by the respondent, as the proceedings are in my view an abuse of process and vexatious. The affidavit of Ellie Jane Palmer, sworn 7 April 2006, shows clearly the protracted and extensive litigation that has surrounded this same Tribunal decision. The affidavit reveals the applicant has pursued review of the Tribunal decision unsuccessfully before the Federal Magistrates Court a first occasion (annexures “B” and “C”), the Federal Court of Australia (annexures “D” and “E”), the High Court of Australia (annexures “F” and “G”), the Federal Magistrates Court on a second occasion (annexures “H” and “I”), the Federal Court on a second occasion (annexures “J” and “K”) before finally filing in the Federal Magistrates Court for the third time initiating ultimately the proceedings before the Court today (annexure “L”). Further, that such action now was taken with the knowledge of the time limit that now applies.

11. As I have indicated, for reason of want of jurisdiction, the application is dismissed. The respondent also pressed that an order be made preventing the applicant from filing a further application for review of the Tribunal’s decision in this Court. In all the circumstances, particularly given the extensive litigation history, this is clearly appropriate, and accordingly I make the orders as sought by the respondent.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date:  14 July 2006