SZANJ v Minister for Immigration
[2005] FMCA 1715
•3 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1715 |
| 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. |
| Migration Act 1958 (Cth), ss.474; 477 Federal Magistrates Act 1999 (Cth), s.15 |
| Chamberlain v Deputy Commissioner of Taxation (1987-8) 164 CLR 502 SZDCJ vMinister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1500 |
| Applicant: | SZANJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2386 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 November 2005 |
| Date of Last Submission: | 3 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr P. Reynolds, Clayton Utz |
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 26 August 2005 is dismissed as incompetent.
That the Applicant be precluded from filing any further application in this Court without leave of the Court.
That the Applicant pay the Respondent's costs on an indemnity basis in an amount of $4800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2386 of 2005
| SZANJ |
Applicant
And
| 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 26 September 2005, in which the First Respondent seeks dismissal of the Applicant’s application, filed in this Court on
26 August 2005, on the basis that the first application was filed in excess of the 28 day 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 18 March 2003. The First Respondent contends that the decision of the Tribunal is a privative clause decision, and, pursuant to s.477 of the Act, this Court has no jurisdiction to entertain the application.
On 26 September 2005, the First Respondent filed a notice of objection to competency.
The First Respondent read the affidavit of Patrick David Reynolds sworn 21 September 2005. Annexed to this affidavit is a copy of the Applicant’s application filed in the Federal Magistrates Court on
5 May 2003, seeking judicial review of the Tribunal’s decision of
9 April 2003, affirming the delegate’s decision to refuse a protection visa.
After a hearing at which the Applicant appeared, Driver FM delivered a judgment on 18 June 2004, in which he found that there was no jurisdictional error in the decision of the Tribunal and dismissed the Applicant's application. There being no jurisdictional error, the Tribunal's decision was a privative clause decision, pursuant to s.474 of the Act.
On 6 July 2004, the Applicant filed a notice of appeal in the Federal Court of Australia in respect of the judgment of Driver FM.
On 8 October 2004, Tamberlin J, sitting as a single judge but exercising appellate jurisdiction, dismissed the appeal on the basis that there was no reviewable error in the reasoning of the decisions of Driver FM or the Tribunal.
On 4 November 2004, the Applicant filed an application for special leave to appeal in the High Court of Australia in respect of the judgment of Tamberlin J.
On 12 August 2005, the application for special leave to appeal to the High Court was dismissed.
On 26 August 2005, the Applicant filed a new application in this Court claiming that the decision of the Tribunal was not a privative clause decision.
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 18 March 2003. The Applicant filed an application in this Court on 26 August 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 for order 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. Section 15 of the Federal Magistrates Act 1999 (Cth) provides this Court with power to make such an order. (SZDCJ vMinister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1500 at [29]).
It is plain from the procedural history of this matter that, between
5 May 2003 and 4 November 2004, 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 was 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 26 August 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 in respect of the Applicant’s application for special leave to appeal, that there was nothing in the Tribunal’s reasons, or the reasons of the Courts below, to indicate any error that would justify the grant of special leave. 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 file an application on 26 August 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 26 August 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 17 November 2005
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