SZBCA v Minister for Immigration
[2007] FMCA 1220
•4 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCA v MINISTER FOR IMMIGRATION | [2007] FMCA 1220 |
| MIGRATION – Application filed out of time – no extension – no arguable case – vexatious – abuse of process – application dismissed. |
| Migration Act 1958 (Cth), ss.476(2), 477 Migration Litigation Reform Act 2005 (Cth), cl.42 Federal Magistrates Court Rules 2001, rr.13.10, 13.11 |
| Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 SZJYV v Minister for Immigration and Citizenship [2007] FCA 731 |
| Applicant: | SZBCA |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 700 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 4 July 2007 |
| Date of last submission: | 4 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr. Dooley of Sparke Helmore |
ORDERS
The application and amended application are dismissed pursuant to:
(i)Section 476(2) of the Migration Act 1958 (Cth) as the applications are outside the jurisdiction of the Court;
(ii)Rule 13.10(a) as the applicant has no reasonable prospect of successfully prosecuting the proceedings or claims;
(iii)Rule 13.10(b) for being vexatious;
(iv)Rule 13.10(c) for being an abuse of the process of the Court.
The application and amended application are invalid by reason of s.477 of the Migration Act 1958 (Cth).
If they are taken to be applications to review the decision of the Refugee Review Tribunal of 13 June 2003, they are both dismissed as invalid by reason of s.477 of the Act.
Pursuant to Rule 13.11(a), any proceeding instituted by the applicant in relation to the decision of the delegate in this matter dated 11 January 2007, or to the decision of the Refugee Review Tribunal of 13 June 2003 (and handed down on 9 July 2003), may not be continued without the leave of the Court.
Pursuant to Rule 13.11(b), the applicant may not initiate a proceeding without leave of the Court.
The Court directs the Registrar of the Court not to accept for filing any document from, or on behalf of, the applicant without prior leave of the Court.
The applicant is to pay the costs of the first respondent fixed in the amount of $2600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 700 of 2007
| SZBCA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the delegate of the Minister (“the delegate”) handed down on
11 January 2001. The applicant filed an amended application on
14 May 2007.
A chronology of relevant events is as follows (reproduced from the affidavit of Andrea Nesbitt sworn on 19 March 2007, Annexure A):
BACKGROUND
Applicant born in Bangladesh 18 April 1971
Applicant arrived in Australia 31 August 2000DIMA
Application for protection visa lodged 11 October 2000
Delegate’s decision, refusing a visa 11 January 2007RRT
Application for review lodged 7 February 2001
RRT hearing 10 December 2002RRT decision handed down, affirming delegate’s 9 July 2003
decisionFEDERAL MAGISTRATES COURT – SYG 1502 of 2003
Application for judicial review lodged 4 August 2003
Driver FM dismissed application with costs 9 December 2004FEDERAL COURT OF AUSTRALIA – NSD 1941 of 2004
Notice of appeal lodged 23 December 2004
Wilcox J dismissed appeal with costs 24 March 2005HIGH COURT OF AUSTRALIA – 163 of 2005
Application for special leave to appeal lodged 19 April 2005McHugh and Heydon JJ dismissed application 29 August 2005
for special leave to appealFEDERAL MAGISTRATES COURT – SYG 2660 of 2005
Application for judicial review lodged with the 21 September 2005
Court.Notice of objection to competency filed 4 October 2005
Notice of motion for summary dismissal filed 4 October 2005Barnes FM dismissed application with 20 February 2006
indemnity costsFEDERAL COURT OF AUSTRALIA – NSD 508 of 2006
Application for leave to appeal 9 March 2006Moore J dismissed application for leave 14 June 2006
to appeal with costsHIGH COURT OF AUSTRALIA – S232 of 2006
Application for special leave to appeal lodged 10 July 2006
Gummow and Heydon JJ dismissed application 8 February 2007
FEDERAL MAGISTRATES COURT – SYG 700 of 2007
Application for judicial review filed 28 February 2007Directions hearing 20 March 2007
The respondent seeks that the applications be dismissed, on the bases that:
(i)The Court has no jurisdiction to review the delegate’s decision as s.476(2) of the Migration Act 1958 (Cth) (“the Act”) applies;
(ii)The Court has no jurisdiction to review the decision of the Tribunal as the application was filed out of time: s.477(1);
(iii)The application for review does not raise an arguable case for the relief claimed;
(iv)Pursuant to Rule 13.10(a), the applicant has no reasonable prospect of successfully prosecuting the proceeding;
(v)Pursuant to Rule 13.10(b), the proceeding is frivolous or vexatious;
(vi)Pursuant to Rule 13.10(c), the proceeding is an abuse of the process of the Court.
Findings of the Court
The application filed on 28 February 2007 seeks in every ground to review the decision of the delegate to the Minister dated 11 January 2001.
The amended application filed on 14 May 2007 seeks to review the same decision of the delegate of the Minister, but refers also to the decision of the Tribunal.
By s.476(2) of the Act, this Court does not have jurisdiction to review the decision of the delegate to the Minister, as the decision is a “primary decision” as defined in that section.
The application was filed on 28 February 2007. The application states that notification of the decision was received 7 working days from the date of decision of 11 January 2001.
The application did not seek an extension of time. No extension of time can be granted. The application is invalid by reason of s.477 of the Act. It is dismissed. The amended application seeks to amend an invalid application. It is dismissed. The decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 that s.486A of the Migration Act is invalid does not bring the validity of s.477 into doubt: SZJYV v Minister for Immigration and Citizenship [2007] FCA 731 at [5] per Downes J.
If the application or amended application are deemed to be an application to review the decision of the Refugee Review Tribunal dated 13 June 2003, they are invalid because the application is filed outside the time limit provided in s.477 of the Act. The amended application seeks to amend an invalid application.
The applicant obviously had notice of the decision of the Tribunal prior to commencing his first proceedings in this Court on 4 August 2003. Pursuant to clause 42 of the Migration Litigation Reform Act 2005 (Cth), the applicant is taken to have received actual notification on
1 December 2005. The application is therefore made in breach of s.477 of the Act, and is invalid. The amended application is also dismissed pursuant to s.477.
Further, an application for judicial review of the decision of the Tribunal was dealt with and dismissed by Driver FM on 9 December 2004.
The Court accepts the submission for the first respondent that the question of whether there is a judicially reviewable error in that decision of the Tribunal is res judicata, and the applicant cannot bring further claims in relation to that decision. The matter was decided by Driver FM and his decision is not subject to review.
Having regard to the history of the proceedings, the Court is satisfied that the current proceedings are an abuse of the process of the Court.
Having regard to the history of litigation in this and other Australian Courts, the Court finds that the current claims are vexatious.
The Court finds that the applicant has no reasonable prospect of successfully prosecuting the proceedings or claims.
Accordingly, the application and amended application are dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 26 July 2007
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