SZASP v Minister for Immigration

[2007] FMCA 56

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 56

MIGRATION – RRT decision – jurisdiction declined by Tribunal due to previous review by Tribunal – application for mandamus was hopeless – dismissed due to absence at first court date – reinstatement refused.

Federal Magistrates Court Rules 2001 (Cth), r.16.05(2)(a)
Migration Act 1958 (Cth), ss.412, 476

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
SZASP v Minister for Immigration [2004] FMCA 657
SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151
SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 403

Applicant: SZASP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3403 of 2006

Judgment of: Smith FM

Hearing date: 16 January 2007

Delivered at: Sydney

Delivered on: 16 January 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms S Zarucki

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 12 December 2006 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $550. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3403 of 2006

SZASP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive application in this matter was filed on 20 November 2006, and seeks orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 26 October 2006 and handed down on 27 October 2006. 

2. In that decision, the Tribunal decided that it did not have jurisdiction to entertain an application which had been lodged with the Tribunal by the applicant on 16 August 2006.  That application asked the Tribunal to review the merits of a decision taken by a delegate of the Minister on 21 April 1998, refusing to grant the applicant a protection visa.  The Tribunal noted that the applicant received actual notification of the delegate’s decision soon after it was made, and previously obtained a review by the Tribunal in a decision made on 1 November 2000.  The Tribunal also noted that the applicant unsuccessfully sought judicial review of the Tribunal’s decision, and had also unsuccessfully sought the Minister’s intervention under s.417 of the Act. 

3. The litigation history of the applicant’s unsuccessful judicial review applications can be found in the judgments of Lloyd‑Jones FM in SZASP v Minister for Immigration [2004] FMCA 657, Conti J in SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151, and Kirby and Callinan JJ in SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 403.

4. In its present decision, the Tribunal concluded that, as a result of the previous decision of the Tribunal whose validity had been judicially upheld, it was functus officio in relation to any further application to the Tribunal by the applicant, even assuming that it was brought within the time limit under s.412 of the Migration Act.

5. In my opinion, the Tribunal’s opinion in that respect was undoubtedly correct, and I can see no argument reasonably open to the applicant to the contrary (see Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301).

6. I therefore consider that the applicant’s substantive application to this Court, in effect seeking orders by way of mandamus to require the Tribunal to embark on a review of the delegate’s decision, is doomed to failure were it to proceed to a hearing. 

7. I express my conclusion in that way, because when the application was listed at a first court date on 12 December 2006, the applicant failed to appear and I dismissed the application in his absence. 

8. He now brings an application to reinstate the substantive application.  It is supported by an affidavit which explains that he missed the listing as a result of sleeping until 11 am on that morning.  He has not been cross‑examined on his affidavit, and his application for reinstatement was brought with reasonable speed.  If there had been any prospect of an arguable case in the substantive matter, I would have reinstated the application.  However, for the reasons I have explained, I consider it would be futile to set aside my previous orders. 

9. I therefore refuse to set aside my order which dismissed the substantive application. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  30 January 2007