SZBJP v Minister for Immigration
[2006] FMCA 1098
•20 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1098 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – out of time – application incompetent. |
| Migration Act 1958 (Cth) Migration Legislation Reform Act 2005 (Cth) |
| SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 590 |
| Applicant: | SZBJP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1719 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Nil |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed on 16 June 2006 be dismissed as incompetent.
That the name of the First Respondent be changed to read ‘Minister for Immigration & Multicultural Affairs’.
That the Applicant pay the First Respondent’s costs set in the amount of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1719 of 2006
| SZBJP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the court by way of a notice of motion filed by the respondent on 30 June 2006, seeking dismissal of an application filed by the applicant on 16 June 2006. The applicant's application seeks review of a decision of the Refugee Review Tribunal (the tribunal) affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The Tribunal decision was made on 12 August 2003.
The notice of motion seeks dismissal on a number of grounds, (the grounds for which also appear in the response filed by the respondent on 30 June 2006), primarily on the basis that the court has no jurisdiction to review the decision of the Tribunal because s.477 of the Migration Act 1958 (Cth) (the Act) applies.
In that respect I note first that in the application filed on 16 June 2006 it is stated that the Tribunal decision was made on 12 August 2003. In response to the question as to when notification of the decision was received by the applicant it is stated "Decision handed down on
12 August 2003, taken to be notified of the decision by seven working days from the date of the letter".
Secondly, there have been prior judicial review proceedings in relation to this Tribunal decision, commencing with an application filed in this court on 2 September 2003 seeking review of the Tribunal decision. That application was dismissed on 23 December 2003: see SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 590. An appeal to the Full Court of the Federal Court was dismissed on 5 April 2004 and an application for special leave to appeal to the High Court was dismissed on 27 April 2005. There can be no doubt that the applicant received actual notification of the Tribunal decision prior to commencing the earlier proceedings in this court on 2 September 2003.
The current application was filed by the applicant on 16 June 2006. Under the Migration Act as it has stood since 1 December 2005, by virtue of amendments made by the Migration Legislation Reform Act 2005 (Cth) the court's jurisdiction is now subject to a strict time limit under section 477. That section provides that an application to the court in relation to a migration decision must be made within 28 days of the actual, as opposed to deemed, notification of the decision. Under subsection (2) the court may extend the 28-day period by up to 56 days, that is, to a total of 84 days. Subsection (3) provides that, apart from this limited extension, the court must not make an order allowing, or which has the effect of allowing, an applicant to make an application outside the time limit.
I note that s.477 applies not only to privative clause decisions but also, by virtue of the definition of migration decision in section 5 of the Act, to a purported privative clause decision or a non-privative clause decision.
Transitional provisions in the Migration Legislation Reform Act apply where proceedings, as in this case, relate to a decision prior to
1 December 2005 and the proceedings are commenced after
1 December 2005. Clause 42(a) of Schedule 1 to the amending Act provides that section 477 applies as if the actual notification of the decision took place on the commencement day, that is 1 December 2005.
The effect of these time limits, even allowing for the maximum extension of time permitted, is that this application is incompetent as it was filed outside the time provided for in section 477 which, in conjunction with the transitional provisions, expired on 24 February 2006. That is because the applicant is taken to have received actual notification of the Tribunal decision on 1 December 2005 and these proceedings were not commenced within 28 days of that date. As the application was filed over 84 days after 1 December 2005 the court has no discretion to extend time and the present application is clearly incompetent. That is sufficient to dispose of this matter as the court has no jurisdiction.
The respondent relied, in the alternative, on contentions that the applicant had no reasonable prospect of successfully prosecuting the proceeding, that the proceeding was an abuse of process, or that the doctrines of res judicata, issue estoppel or Anshun estoppel applied. Given that the application is incompetent it is not necessary to consider each of those alternatives. However I note that, had I not dismissed the proceedings as incompetent, in light of the prior proceedings in this court, the Federal Court and the unsuccessful application to the High Court, it is likely that I would have dismissed the proceedings as an abuse of process under Rule 13.10(c) of the Federal Magistrates Court Rules.
It is not however, necessary for me to determine this, nor appropriate given that the court has no jurisdiction. Accordingly, the application filed on 16 June 2006 is dismissed as incompetent. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The name of the Department has changed and it is appropriate that that be reflected in these proceedings as requested. I will order that the name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.
The respondent seeks that the applicant pay costs in the sum of $3,300 on an indemnity basis. I have had regard to the applicant's litigation history and am satisfied that there proceedings constitute an attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings. The matter was finally disposed of in the proceedings in this court, the Full Federal Court and the High Court. This application was filed some considerable time after the High Court dismissed the application for special leave to appeal, that being on
27 April 2005. In all the circumstances of the case I consider it as appropriate that the costs sought be ordered on an indemnity basis.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 August 2006
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