SZAVG v Minister for Immigration
[2005] FMCA 1666
•8 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVG v MINISTER FOR IMMIGRATION | [2005] FMCA 1666 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
| Applicant: | SZAVG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2188 of 2005 |
| Delivered on: | 8 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr R White |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s Notice of Objection to Competency filed on
2 September 2005 and the Notice of Motion filed on 13 September 2005 are upheld.
The application for judicial review filed on 15 August 2005 is dismissed as incompetent.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 9 May 2003 and handed down on
3 June 2003 be accepted for filing except with leave of this Court.
Pursuant to Rule 13.11(3) of the Federal Magistrates Court Rules 2001 (Cth) the applicant may not institute any proceeding against the Minister for Immigration & Multicultural & Indigenous Affairs or any of her delegates without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2188 of 2005
| SZAVG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 2 September 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submits that the application should be dismissed as this Court does not have jurisdiction to hear it.
In the alternative, by a Notice of Motion filed on 13 September 2005, the respondent seeks an order dismissing the application filed on
15 August 2005 on the ground that pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) the proceedings are an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on
15 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal) made on 9 May 2003 and handed down on
3 June 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 4 February 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the respondent tendered and applied for the affidavit of Jennifer Bautista sworn on 9 September 2005 to be admitted into evidence.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZAVG”.
Background
The applicant, who claims to be a citizen of Pakistan, arrived in Australia on 1 December 1998. On 26 November 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 12 February 2002 the delegate refused to grant a protection visa and on 22 February 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant is a single man from Karachi. He lists his religion as Islam and his profession as marketing manager. He speaks English, Urdu, Hindi and Punjabi and reads and writes Arabic. The applicant arrived in Australia in 1998 on a student visa and studied for three years at the University of Western Sydney. Prior to his arrival in Australia, the applicant was a student at Newport University in Karachi. He holds a degree in Business Administration and has a cousin in Australia.
Litigation history
The affidavit of Jennifer Bautista, Solicitor for the respondent, contains a convenient summary of the litigation history of the applicant which
I have adopted and reproduced as follows:
On 13 August 2003, a Court Book was filed in the Federal Magistrates Court of Australia, proceedings number SZ1146 of 2003.
On 9 May 2003, the RRT constituted by Dr Irene O’Connell, made a decision to affirm the decision of the delegate of the respondent to refuse the applicant a protection visa. The decision was handed down on 3 June 2003.
On 24 June 2003, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia at Sydney to review the RRT decision handed down on 3 June 2003. Those proceedings were given the Federal Magistrates Court proceedings number SZ1146 of 2003.
At a directions hearing on 14 August 2003, there was no appearance by the applicant. Orders were made listing the matter for further directions hearing on 20 August 2003.
At the second directions hearing on 20 August 2003, there was again no appearance by the applicant. Registrar Kavallaris ordered that the application be dismissed pursuant to order 10.01(2)(b) of the Federal Magistrates Court Rules.
On 5 September 2003, the applicant filed an application to set aside the orders of Registrar Kavallaris dated 20 August 2003, with an accompanying affidavit in the Federal Magistrates Court.
At the hearing of the applicant’s notice of motion on 9 October 2003, there was no appearance by the applicant. The Honourable Federal Magistrate Driver ordered that the motion by the applicant be dismissed with costs fixed in the sum of $1,000.00.
On 31 October 2003, the applicant filed an application for extension of time to file and serve a notice of appeal in the Federal Court of Australia, New South Wales District Registry. These proceedings were allocated Federal Court proceedings number N1709 of 2003.
On 9 December 2003, the Honourable Justice Stone ordered that application for leave and extension of time be refused with costs.
On 5 January 2004, the applicant filed an application for special leave to appeal in the High Court of Australia, Sydney Office of the Registry. Those proceedings were allocated High Court proceedings number S7 of 2004.
On 6 July 2004, a Deputy Registrar of the High Court of Australia certified proceedings S7 of 2004 as deemed abandoned.
On 15 August 2005, the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the RRT decision handed down on 3 June 2003. Those proceedings were given Federal Magistrates Court proceedings number SYG2188 of 2005.
Reasons
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 15 August 2005 and seeks review of the Tribunal decision made on 9 May 2003 and handed down on 3 June 2003. In the interim period, an application to review the decision of the Tribunal has been listed in the Federal Magistrates Court of Australia, the Federal Court and a special leave application to the High Court. No error has been found in the Tribunal’s decision. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction.
However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purposes of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did, as set out in its decision, and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Another issue to consider was why the applicant had re-invigorated these proceedings but has previously failed to prosecute the matter when the matter was listed for hearing. The motivation for the re-invigoration of these proceedings may have been to extend the applicant’s stay in the country. My attention has been drawn to the decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay.”
Conclusion
The application filed on 15 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 8 November 2005
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