SZBCB v Minister for Immigration

[2006] FMCA 603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 603

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application at the first court date – application incompetent as filed out of time.

Migration Act 1958 (Cth), ss.477, 486D
Migration Litigation Reform Act 2005 (Cth)
Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZBCB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG893 of 2006

Judgment of: Driver FM

Hearing date: 26 April 2006

Delivered at: Sydney

Delivered on: 26 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Crawley
Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.

2. The application filed on 27 March 2006 is dismissed as incompetent.

3. The Court declares that the application was vexatious and an abuse of the Court’s process.

4. The Court directs that no further application by this applicant for review of the decision of the Refugee Review Tribunal handed down on 9 July 2003 (reference N 01/40430) or for review of the decision of the delegate of the first respondent dated 25 September 2001 or for review of any notification of those decisions by this applicant shall be accepted for filing without leave of the Court.

5. 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 $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG893 of 2006

SZBCB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application asserts that the decision was made on 12 June 2003 and that the applicant was deemed to have been notified of it seven working days after the decision was handed down on 9 July 2003. The application also acknowledges in accordance with s.486D of the Migration Act 1958 (Cth) (“the Migration Act”) earlier judicial proceedings in relation to the RRT decision.

2. The application was filed on 27 March 2006. It was therefore plain, on the face of the application that an issue of jurisdiction arose. Section 477 of the Migration Act imposes a 28 day time limit on application to this Court. Time runs from the date of actual notification of a tribunal decision. Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) makes transitional arrangements. Relevantly, where proceedings are commenced on or after 1 December 2005 in relation to a migration decision made before that date and actual notification of the decision is given before that date, s.477 applies as if the actual notification of the decision took place on 1 December 2005. The applicant acknowledged from the bar table what appeared almost certain on the face of his application, which was that he did receive actual notification of the RRT decision well before December 2005. He is therefore taken to have been notified of the decision on 1 December 2005. The application was filed well outside the prescribed 28 day time limit.

3. Section 477(2) of the Migration Act provides that the Court may, by order, extend the 28 day time period by up to 56 days if an application for an extension of time is made within 84 days of the actual notification of the decision. It follows that an application for an extension of time needed to be made within 84 days of 1 December 2005. The application seeks an extension of time but was filed well outside the 84 day prescribed time period.

4. Since 1 December 2005 the prescribed time limits apply whether or not the migration decision is a privative clause decision.  It follows that I have no jurisdiction to entertain the application and it must be dismissed as incompetent.  That is the first order sought in the Minister's response filed on 6 April 2006.  The Minister presses in addition for orders that no further application for review of the decision be accepted for filing without leave of the Court and indemnity costs.  In support of that request the Minister reads the affidavit of Kathleen Mary Crawley made on 6 April 2006.  I also received the applicant's affidavit made on 18 March 2006.  The applicant's affidavit essentially supports his protection visa claims.  Plainly, the applicant is dissatisfied with the decision of the RRT.  The affidavit annexes documents which appear not to have been available to the RRT.

5. Ms Crawley's affidavit, which I accept, details the earlier proceeding in relation to the RRT decision.  I am satisfied on the basis of the facts deposed to by Ms Crawley that the present application is vexatious and an abuse of the Court's process. 

6. I will order that the application filed on 27 March 2006 is dismissed as incompetent.  The Court declares that the application was vexatious and an abuse of the Court's process.  The Court directs that no further application for review of the decision of the Refugee Review Tribunal handed down on 9 July 2003, reference N01/40430 or for review of the decision of a delegate of the first respondent dated 25 September 2001 or for review of any notification of those decisions by this applicant shall be accepted for filing without leave of the Court.

7. In the light of the orders that I have made I accept that costs should be awarded on an indemnity basis.  The applicant sought a reduced order but as I explained to him he is no stranger to litigation and could not have been in any doubt as to the risk of an adverse costs order that he faced.

8. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,600.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 May 2006