SZBCF v Minister for Immigration
[2007] FMCA 1069
•14 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1069 |
| MIGRATION – Application for summary disposal of application for review of RRT decision – where application to review decision made out of time – where Tribunal had already reviewed delegate’s decision – where applicant had previously appealed the decision – where no prospects of success of application. |
| Migration Act 1958, ss.411(1)(c), 412(1)(b) Migration Regulations 1994, r.4.31(2)(b) |
| SZBCF v Minister for Immigration [2004] FMCA 1006 SZBCF v Minister for Immigration [2005] FCA 1719 SZBCF v Minister for Immigration [2006] HCA Trans 287 SZBCF v Minister for Immigration [2006] FMCA 1096 SZBCF v Minister for Immigration [2006] FCA 1581 |
| Applicant: | SZBCF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 463 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 June 2007 |
| Date of last submission: | 14 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2007 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules.
Applicant to pay First Respondent’s costs assessed in the sum of $3,000.00.
No further application for review of the decision of the Refugee Review Tribunal handed down on 30 June 2003 (RRT reference N02/44349), or the decision of the Refugee Review Tribunal dated 31 January 2007 (RRT reference 060990255) or for review of the decision of the delegate of the First Respondent dated 22 August 2002 (reference CLF2002/34175) shall be accepted for filing without leave of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 463 of 2007
| SZBCF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
There comes before me an application by the first respondent for summary disposal of this proceeding which is an application for review of a decision of the Refugee Review Tribunal made on 31 January 2007. The Tribunal at that time determined that it did not have jurisdiction in the matter. The reason the Tribunal did not have jurisdiction in the matter was twofold. Firstly, the application to review a decision of a delegate made on 22 August 2002 was made on 27 November 2006 over four years after the original determination. The Tribunal found that the relevant time limit for making such an application was 28 days: s.411(1)(c), s.412(1)(b) Migration Act 1958 (“the Act”) and rule 4.31(2)(b) Migration Regulations 1994, and s.426A. The Tribunal found that it had no power to extend the time.
There was another reason why the Tribunal declined this application and that was because it found itself to be functus officio on the grounds that it had already made a decision in relation to the determination of the delegate which it handed down on 30 June 2003. The applicant was not satisfied that the decision handed down at that time complied with the requirements for the Act and sought review from this court: SZBCF v Minister for Immigration [2004] FMCA 1006. The matter came before me and I took the view that no jurisdictional error could be established and declined to grant review. The applicant was not satisfied with my decision and appealed to the Federal Court: SZBCF v Minister for Immigration [2005] FCA 1719. That court upheld my decision. The applicant then sought special leave from the High Court; SZBCF v Minister for Immigration [2006] HCA Trans 287. That leave was not granted.
However, the applicant was not put off by this body of judicial opinion concerning the merits of his claim and sought once again review of the decision of the Tribunal in the Federal Magistrates Court. The application was dismissed by Scarlett FM: SZBCF v Minister for Immigration [2006] FMCA 1096. Undeterred, the applicant appealed the decision of Scarlett FM. His case came before Black CJ on 1 November 2006; SZBCF v Minister for Immigration [2006] FCA 1581. His Honour commented at [5]:
“A week following the refusal of special leave the applicant, in effect, started all over again. He filed an application in the Federal Magistrates Court to challenge the same decision of the Tribunal. The Federal Magistrate noted correctly that as a consequence of the operation of the provisions of the Migration Litigation Reform Act 2005 (Cth), the application was out of time.” The Magistrate also said that the reasons given by the applicant were, and I quote his Honour (at [4]):
“…not sufficient to show that it would be in the interests of justice to grant an extension of time. Indeed, the application does not appear to show any reasonable cause of action and appears to be an abuse of process in that it is an attempt to re-litigate a matter that has already been litigated as far as the High Court of Australia.”
At [8]:
“[t]he law does not permit the same matter to be re-litigated again and again, as the applicant seeks to do.”
His Honour’s judgment was handed down on 21 November 2006. As we now know, on 27 November the applicant lodged the application to the Refugee Review Tribunal which is the subject matter of this application for review and this application to strike out. In response to the submissions of Mr Cramer, the applicant said merely that if he returned to India he would be in danger. That of course is not a matter which this court can take into account, being a matter going only to the merits of the original application for asylum. The applicant has advanced no grounds upon which I should entertain this application, whereas the respondent has advanced a considerable body of evidence which indicates that the applicant is abusing the processes of this court, and not only of this court, but of all the other courts in the federal jurisdiction.
I am quite satisfied that this application has no prospects whatsoever of success and should be dismissed for that reason. It is also an abuse of the processes of the court and should likewise be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules. I order that the applicant pay the first respondent’s costs which I assess in the sum of $3000. I direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 30 June 2003 (RRT reference No 2/44349), or the decision of the Refugee Review Tribunal dated 31 January 2007 (RRT reference 060990255) or for review of a decision of the delegate of the first respondent dated 22 August 2002 (reference CLF 2002/34175) shall be accepted for filing without prior leave of the court.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 June 2007
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