SZBOL v Minister for Immigration
[2004] FMCA 1029
•27 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOL v MINISTER FOR IMMIGRATION | [2004] FMCA 1029 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant failing to comply with earlier court orders – application disclosing no cause of action – application incompetent as filed out of time. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477
| Applicant: | SZBOL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2058 of 2003 |
| Delivered on: | 27 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 October 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by or on behalf of the applicant
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed summarily as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2058 of 2003
| SZBOL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter came before me today at the instigation of the Minister due to the non compliance by the applicant with previous court orders. It is plain that the application for judicial review filed on 2 October 2003 discloses no cause of action. No jurisdictional error is asserted, let alone strongly indicated. I also note that the application was filed by solicitors who acted for the applicant at the time and who continued to act for the applicant until today when I granted leave to have filed in court a notice of ceasing to act. I also note that on 7 May 2004 I ordered in chambers that the applicant file and serve on the respondent an amended application containing a ground or grounds of review asserting jurisdictional error and giving particulars of each ground of review relied on, together with any evidence upon which he proposes to rely, on or before 28 June 2004. I further ordered that if an amended application were not filed in accordance with that order, the respondent might request the registry to list the matter in a non-compliance list before me with the intention of applying for summary dismissal due to non-compliance with a direction of the Court.
The order requiring an amended application asserting at least one ground of jurisdictional error has not been complied with. That in itself merits the dismissal of the judicial review application pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In addition, as it is obvious that the application before me discloses no cause of action, the application should be dismissed summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
There is an additional matter. The decision under review was made by the Refugee Review Tribunal (“the RRT”) on 16 June 2000 and the decision was handed down on 4 July 2000. The applicant was notified of the RRT decision by letter dated 4 July 2000. There is nothing to indicate that he did not receive that letter.
I find in the circumstances that the applicant was notified of the decision of the RRT in excess of three years before his judicial review application was filed. Section 477(1A) of the Migration Act 1958 (Cth) requires an application to review a privative clause decision to be made within 28 days of notification of the decision of the RRT. The decision under review is a privative clause decision because it is free from any jurisdictional error. No application has been filed within the prescribed 28 day time limit. It is therefore incompetent.
This is an issue of jurisdiction which should take precedence over any considered dismissal of the application for non-compliance with court rules and because no cause of action is disclosed. In the circumstances, although it is open to me to order that the application be dismissed for the non-compliance and because no cause of action is disclosed, the order that I will make is that on an interlocutory basis the application be dismissed summarily as incompetent.
The issues were reasonably straightforward because the applicant had advanced effectively nothing in support of his application for judicial review. In those circumstances, I will treat this as a simple matter meriting an order for costs in the order of $3,000. I will so order.
I will direct that the Minister cause the orders I have made today to be entered and serve a sealed copy of the orders by ordinary pre-paid post on the applicant at his last known address for service.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 January 2005
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