SZAZP v Minister for Immigration
[2007] FMCA 1109
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1109 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.474, 477, 486D Migration Litigation Reform Act 2005 (Cth) |
| SZAZP v Minister for Immigration [2004] FMCA 733 SZAZP v Minister for Immigration [2005] FCA 1004 SZAZP v Minister for Immigration [2005] HCATrans 929 SZAZP v Minister for Immigration & Anor [2006] FMCA 329 SZAZP v Minister for Immigration [2006] FCA 829 SZAZP v Minister for Immigration [2007] HCATrans 231 SZICO v Minister for Immigration [2006] FCA 1803 SZJDG v Minister for Immigration [2007] FCA 176 |
| Applicant: | SZAZP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1880 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 12 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,300.
The Court directs that no further application by this applicant to review any decision related to his application for a protection visa lodged with the Minister’s Department on 2 May 2001, the decision of the delegate or the review of the delegate’s decision be accepted for filing in this Court without leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1880 of 2007
| SZAZP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 15 June 2007 under the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 24 June 2003. A copy of the decision is annexed to an affidavit by the applicant filed with the show cause application. In his application the applicant asserts actual notification of the Tribunal decision on the day it was handed down.
That immediately discloses a jurisdictional issue.
The Minister raised that issue in his response filed on 26 June 2007. In addition, in his response, the Minister alerted the Court to earlier judicial review proceedings in relation to the same Tribunal decision. I incorporate paragraphs 1, 2 and 3 of the Minister's response filed on
26 June 2007:
The court has no jurisdiction to review the Refugee Review Tribunal decision made on 28 May 2003 and handed down on 24 June 2003 (“the Tribunal decision”). Subsection 477(1) of the Migration Act 1958 (Cth) applies and the application in this Court was not filed within 28 days of actual notification of the Tribunal decision.
The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 24 June 2003.
The applicant has instituted other judicial review proceedings in relation to the decision that is the subject of the current application. All previous applications have been dismissed and the judgments are available at: SZAZP v Minister for Immigration [2004] FMCA 733; SZAZP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1004; SZAZP v Minister for Immigration & Multicultural Affairs [2005] HCATrans 929; SZAZP v Minister for Immigration & Anor [2006] FMCA 329; SZAZP v Minister for Immigration & Multicultural Affairs [2006] FCA 829; and SZAZP v Minister for Immigration & Multicultural Affairs & Anor [2007] HCATrans 231. Accordingly:
a) The applicant is estopped from bringing the current proceedings on the basis of res judicata and issue estoppel.
b) The doctrine of Anshun estoppel applies and there are no special circumstances to justify its non-application.
c) Pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules, the applicant has no reasonable prospect of successfully prosecuting the proceeding.
d) Pursuant to Part 13, rule 13.10(b) of the Federal Magistrates Court Rules, the proceeding is frivolous or vexatious.
e) Pursuant to Part 13, Rules 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
The Minister also filed written submissions on 28 June 2007. The response and submissions were provided to the applicant immediately before Court this morning and he confirmed to me from the bar table that he had read them. I explained to him the jurisdictional issue concerning his application. He did not wish to make any submissions. The position in this case is clear. The application is incompetent, having regard to the time limits on applications to the Court in s.477 of the Migration Act. In addition, the Tribunal decision having previously been found by a superior Court to be free from jurisdictional error, the operation of s.474 of the Migration Act would also deprive the Court of jurisdiction.
I agree with and adopt for the purposes of this judgment paragraphs 3 to 6 of the Minister's written submissions, including the chronology annexed to those submissions:
The applicant’s history of litigation is set out in the chronology attached to these submissions.
The current proceeding is the applicant’s third application for judicial review of the Tribunal decision. We note that the applicant has not accurately listed his previous proceedings in accordance with the s.486D(1) of the Act.
Lack of jurisdiction
The Federal Magistrates Court does not have jurisdiction to review the Tribunal’s decision of 24 June 2003 because the application was filed outside of the time limits provided in s.477 of the Act.
The applicant plainly had actual notice of the Tribunal’s decision prior to his first set of proceedings in the Federal Magistrates Court commenced on 22 July 2003. The applicant is taken to have had actual notification of that decision on 1 December 2005.[1] Section 477(1) of the Act provides that an application must be filed in the Federal Magistrates Court within 28 days of actual notification of the Tribunal’s decision, and s.477(2)(a) of the Act provides that the Court may extend that by up to 56 days if an application for an extension of time is made within 84 days of actual notification of the Tribunal’s decision. The last day on which such an application could be made is 23 February 2006.[2] The applicant has filed his application well after that date (one year later) and accordingly the Court has no jurisdiction to hear it.[3]
[1] Item 42 of the Migration Litigation Reform Act 2005
[2] SZJDG v Minister for Immigration [2007] FCA 176 at [3] per Dowsett J
[3] SZICO v Minister for Immigration [2006] FCA 1803 at [10]-[11] per Tamberlin J
Background 26 April 2001 Applicant arrived in Australia DIMIA 2 May 2001 Applicant lodged application for a protection visa 10 May 2001 Delegate refused application for a protection visa RRT 24 May 2001 Applicant applied to RRT for review of delegate’s decision 1 May 2003 RRT hearing 24 June 2003 RRT decision handed down Federal Magistrates Court SZ1405 of 2003 22 July 2003 Application for an order of review lodged 29 October 2005 Application dismissed by Lloyd-Jones FM. Federal Court NSD1650 of 2004 11 November 2004 Notice of appeal lodged 24 June 2005 Appeal dismissed by Emmett J High Court N2557 of 2003 21 July 2005 Application for special leave lodged 14 November 2005 Application for special leave dismissed by Gummow and Kirby JJ Federal Magistrates Court SYG3422 of 2005
23 November 2005 Application for judicial review lodged. 5 January 2006 Notice of objection to competency filed and served 13 January 2006 Notice of motion for summary dismissal filed and served 1 February 2006 Directions hearing – Application dismissed by Nicholls FM pursuant to Rule 13.03A of the FMCR 23 February 2006 Application to set aside orders filed 7 March 2006 Application to set aside orders dismissed by Nicholls FM dismissed Federal Court NSD632 of 2006 28 March 2006 Application for leave to appeal lodged 14 June 2006 Application for leave to appeal dismissed by Moore J High Court S231 of 2006 7 July 2006 Application for special leave to appeal lodged 23 May 2007 Application for special leave to appeal dismissed by Kirby and Callinan JJ Federal Magistrates Court SYG1880 of 2007 15 June 2007 Application for an order to show cause lodged
The Minister seeks indemnity costs of the application. Having regard to the applicant's litigation history, I am satisfied that the present application before the Court is an abuse of process. Indemnity costs are properly called for.
I order that the applicant pay the costs and disbursements of and incidental to the application of the first respondent on an indemnity basis, fixed in the sum of $1,300.
The Court should seek to ensure in addition that the Minister is not further vexed by applications from this applicant in relation to this matter. I will direct that no further application by this applicant in any way related to his protection visa application lodged on 2 May 2001 with the Minister's Department or the review of it be accepted for filing in this Court without leave of a Federal Magistrate.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 July 2007
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