SZATR v Minister for Immigration
[2006] FMCA 512
•4 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZATR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 512 |
| MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) Visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), rr. 10.01, 13.10 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth), Schedule 1, Clause 42 |
| SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 641 SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1588 SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 483 |
| Applicant: | SZATR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG683 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondent: | Ms B Mendelsohn |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application filed 6 March 2006 is incompetent and is dismissed.
The application is to pay the first respondent’s costs and disbursements, fixed in the sum of $400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG683 of 2006
| SZATR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULITCULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 6 March 2006 for judicial review of a decision of the Refugee Review Tribunal. The Tribunal decision was made on 5 May 2003 and handed down on 27 May 2003, affirming a decision of the delegate of the first respondent, made on 22 November 2001, refusing to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant filed his application with a supporting affidavit on
6 March 2006. The application seeks:
(a)an order the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in relation to the Tribunal’s N01/41094, listing three grounds of review; and
(b)an application for an extension of time under s.477 of the Act. The extension of time is required if the application is not made within 28 days of the actual, as opposed to deemed, notification of decision.
In the application under the heading “Other Court Proceedings”, the applicant identified three previous proceedings as follows:
a)SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 641
This was a decision of Raphael FM, where His Honour made the following finding at [13]:
In all the circumstances I am unable to find any grounds upon which the decision of this Tribunal can be reviewed. I dismiss the application.
b)SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1588
This was a decision of Moore J, where His Honour made the following finding at [15]:
The Federal Magistrate's ultimate conclusion was correct. That is, a case had not been made out for the grant of constitutional writs.
c)SZATR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 483
This was a special leave application to the High Court heard by Gleeson CJ and Gummow J where in the transcript of the proceedings, His Honour Gleeson CJ makes the following statement:
The applicant sought under s 39B of the Judiciary Act 1903 (Cth) review of the Tribunal’s decision in the Federal Magistrates Court. The Court dismissed his application on the basis that the applicant was in effect seeking a mere merits review of the Tribunal’s decision. An appeal to the Federal Court (Moore J) was subsequently dismissed.
We have reviewed the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There are insufficient prospects of success in any appeal to this Court from the decision of the Federal Court. Accordingly, special leave to appeal is refused.
With the filing of the current application, all that the applicant has done is file another application in an attempt to start the whole process again. The applicant did not attempt to raise any new ground of review that has not been before the courts on previous occasions. This is nothing more than an attempt by the applicant to produce further delay by misusing the Court’s procedures and is clearly an abuse of process.
The application was filed in the Court Registry on 6 March 2006. This indicates a considerable delay between notification of the decision (which the applicant acknowledges as 27 May 2003) and filing of the application. The Migration Litigation Reform Act 2005 (Cth) does contain transitional provisions in Schedule 1, Clause 42:
Where proceedings commenced on or after the commencement date 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 if the actual notification of the decision took place on the commencement day.
Given that the date of notification was before the commencement day of 1 December 2005, the Court has, under s.477(2) of the Act, the power to extend the 28 day period for up to 56 days, that is, a total of 84 days. That would require that the application be filed prior to Thursday, 23 February 2006. The Court must be satisfied that:
a)Actual notification was before 1 December 2005; and
b)It is in the interests of the administration of justice to extend the time limit.
Under the r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth), the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which has repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments to the Act introduced r.44.11 to the Federal Magistrates Court Rules. Under r.44.11(a) of the Rules, the Court may dismiss an application at the first Court date on an interlocutory basis, with specific reference to r.44.12 which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2)To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
I note that this power should be exercised cautiously and only in appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to previous determinations listed above at [3]. This Court, the Federal Court and the High Court have found no jurisdictional error in the Tribunal decision. Although none of the courts expressly made the statement, the Tribunal decision is a privative clause decision.
The other significant problem facing the applicant is in relation to the time limit, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act and so places this application within the operations of amended s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interest of the administration of justice to do so.”
I believe that even if the applicant had been properly informed in the preparation of his application, he would not be able to benefit from the transitional time limit extension. The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005. The transitional period with extension expired 84 days from the commencement date of the amended provisions, on Thursday
23 February 2006. This application was not filed until 6 March 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.
Consequently, the application filed on 6 March 2006 must be dismissed on the grounds that it is an abuse of process. Under the provisions of Migration Litigation Reform Act it is also incompetent.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2006