SZALV v Minister for Immigration
[2005] FMCA 1800
•5 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALV v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1800 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – RRT decision previously found to be a privative clause decision – current judicial review application incompetent. PRACTICE AND PROCEDURE – Restriction on further judicial review application in respect of the same RRT decision or the delegate’s decision that preceded it in the light of changes to the Court’s jurisdiction on 1 December 2005. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.474 Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | SZALV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2218 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 5 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms A Radich Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The judicial review application is summarily dismissed as incompetent.
No further application by this applicant to seek judicial review of the decision of the Refugee Review Tribunal made on 3 April 2003 or the decision of the Minister’s delegate made on 28 March 2002 be accepted for filing, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2218 of 2005
| SZALV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency filed on 25 October 2005. In that notice the Minister asserts that the Court has no jurisdiction to entertain a judicial review application filed on 17 August 2005. Also on 25 October 2005 the Minister gave notice of a motion for the summary dismissal of the judicial review application on the basis that the proceeding is frivolous or vexatious or an abuse of process. The Minister also seeks ancillary relief. The notice of objection to competency and motion are supported by the affidavit of Melissa Inge Gwendolyn Asimus. I received that affidavit as evidence. I also have before me a book of relevant documents filed on 11 October 2005. In addition, the Minister relies upon written submissions filed in my chambers on 28 November 2005. Ms Radich, for the Minister, also made oral submissions.
The background to this matter is adequately set out in the Minister's written submissions. I adopt paragraphs 4 to 11 of those written submissions as background:
The applicant is a citizen of India who entered Australia on 13 October 2001. On 9 November 2001, the applicant applied for a protection (Class XA) visa which was refused by a delegate of the respondent on 28 March 2002[1]. The Refugee Review Tribunal (“the RRT”) affirmed the decision of the delegate on 3 April 2003[2].
[1] Affidavit of Melissa Inga Gwendolyn Asimus, affirmed 23 October 2005, (Affidavit of MIGA) at page 5.
[2] Affidavit of MIGA at page 4.
Previous judicial review proceedings
The RRT’s decision has been the subject of previous proceedings instituted by the applicant. The applicant applied to the Federal Magistrates Court for review of the RRT’s decision on 30 April 2003, and that application was dismissed by [me] on 23 April 2004[3]. The applicant appealed from [my] judgment to the Federal Court, and on 14 October 2004 that appeal was dismissed by Justice Bennett[4]. The applicant then filed an application for special leave to appeal to the High Court on 9 November 2004, and on 1 August 2005 that application was dismissed by Gummow and Kirby JJ[5].
[3] Affidavit of MIGA at page 14.
[4] Affidavit of MIGA at page 33.
[5] Affidavit of MIGA at page 47.
Federal Magistrates Court proceedings
On 30 April 2003 the applicant filed an application in the Federal Magistrates Court seeking review of the RRT’s decision[6]. The application contained seven grounds of review, which included allegations of bad faith, bias and a failure to accord procedural fairness, none of which were particularised.
[6] Affidavit of MIGA at page 1.
On 23 April 2004, [I] ordered that the application be dismissed with costs[7]. [I] rejected all of the grounds contained in the application and proceeded to consider whether there might be some jurisdictional error in the RRT’s decision not advanced by the applicant, as he was self-represented[8]. [I] concluded that[9]:
[7] Affidavit of MIGA at page 13.
[8] Affidavit of MIGA at pages 20-24 [5].
[9] Affidavit of MIGA at page 24 [7].
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. I must dismiss the application.
Federal Court proceedings
On 10 May 2004, the applicant filed a notice of appeal in the Federal Court, appealing [my] decision[10]. An amended notice of appeal was filed on 25 June 2004[11]. The amended notice of appeal alleged that [I] had erred in failing to find that the RRT’s decision was affected by jurisdictional error and that the RRT "erred in law amounting to jurisdictional error in determining whether the harm suffered by the applicant amounted to persecution". The applicant did not provide any particulars of the alleged error by [me].
On 14 October 2004 Bennett J dismissed the appeal with costs[12]. At the hearing of the appeal the applicant handed up a document entitled "Written Argument by Applicant", which contained a number of further arguments relating to the RRT’s decision[13]. Bennett J considered those arguments as well as the grounds contained in the amended notice of appeal. Her Honour concluded[14]:
No error has been established in Driver FM's decision to refuse the appeal from the Tribunal. The Tribunal considered the evidence put to it by the appellant and reasoned its decision on the basis of his evidence. The Tribunal's decision rested principally upon its finding that the appellant was not a credible witness and that much of his evidence was implausible. Federal Magistrate Driver rightly concluded that it was not open to him to disturb such findings. The appellant has not established any grounds for setting aside this decision.
The appellant has not established any error on the part of Driver FM and therefore there is no jurisdictional error on the part of the Tribunal. Accordingly, the decision falls within the description of a privative clause decision in s 474 of the Act. It follows that the appeal should be dismissed."
Application for special leave to appeal
On 9 November 2004 the applicant filed an application for special leave to appeal to the High Court[15]. On 1 August 2005, Gummow and Kirby JJ, dismissed the application for special leave on the basis that there were insufficient prospects of the appeal succeeding[16].
Present proceedings
On 17 August 2005, the applicant filed a further application for review of the RRT’s decision in this Court.
[10] Affidavit of MIGA at page 26.
[11] Affidavit of MIGA at page 30.
[12] Affidavit of MIGA at page 33.
[13] Affidavit of MIGA at page 38 [9].
[14] Affidavit of MIGA at page 42 [27]-[28].
[15] Affidavit of MIGA at page 44.
[16] Affidait of MIGA at page 49.
I accept the evidence of Ms Asimus concerning the earlier proceedings in respect of the same RRT decision.
In his oral submissions, the applicant asserts that he is a genuine refugee. He asked for more time in order to collect further documents from India in order to support his protection visa claims. As I explained to him, however, the issue of whether or not the applicant is a refugee is beyond the scope of these proceedings.
It is only possible for this Court to grant relief to applicants in respect of RRT decisions which are not privative clause decisions. In the previous proceedings before this Court, I found that the decision of the RRT is a privative clause decision. My decision was affirmed on appeal by Bennett J. I am bound by the decision of the Federal Court. I find that I have no further jurisdiction to consider whether the RRT decision is or is not a privative clause decision. The consequence is that the judicial review application must be dismissed as incompetent. I will so order. In addition, the Minister should not be troubled by any further application in respect of the same decision.
I also note that in recent weeks there have been a significant number of applications to review decisions of delegates preceding decisions of a tribunal. The opportunity for such an application in this Court has been removed with effect from 1 December 2005 by the Migration Litigation Reform Act 2005 (Cth). I will order that no further application by this applicant to seek judicial review of the decision of the RRT made on 27 November 2001 or the decision of the Minister's delegate made on 28 March 2002 be accepted for filing, except by leave of the Court.
On the question of costs, the judicial review application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,500 consistently with paragraph (b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth). I agree that that is the appropriate amount and I will so order.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 December 2005
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