SZBSM v Minister for Immigration
[2007] FMCA 297
•8 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBSM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 297 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – decision of the Tribunal upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as an abuse of process and incompetent under the Migration Litigation Reform Act 2005 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476, 477 Migration Litigation Reform Act 2005 (Cth) Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
SZBSM v Minister for Immigration [2005] FMCA 1490
SZBSM v Minister for Immigration [2006] FCA 569
SZBSM v Minister for Immigration [2006] HCA Trans 607
Walton v Gardiner (1993) 177 CLR 378
| Applicant: | SZBSM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3604 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Malayalam interpreter |
| Advocate for the Respondent: | Ms Burnett of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
This Court has no jurisdiction to hear this application under s.476 of the Migration Act 1958 (Cth).
The application filed on 5 December 2006 is incompetent and is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to this application, fixed in the sum of $600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3604 of 2006
| SZBSM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicant seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Both parties appeared. The applicant is a self-represented litigant and had the assistance of an interpreter. The respondent filed an affidavit and a response. I believe it is in all the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 December 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 September 2003 and handed down on 15 October 2003, affirming the decision of the delegate of the first respondent made on 8 November 2002, refusing to grant the applicant a Protection (class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZBSM”.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. At the first Court date, I advised the parties that due to the contents of the application, the details of which are set out below under “Litigation History”, I would proceed to a show cause hearing to determine the future course of this matter.
The respondents’ solicitors filed a response on 14 December 2006, which sets out the orders sought by the first respondent. The response states:
1.The Court does not have jurisdiction to hear the Applicant’s application.
2.The Applicant was notified of the decision of the Refugee Review Tribunal (“RRT”) the subject of review in these proceedings (the “RRT decision”) on 15 October 2003.
Particulars
see page 2 of the Applicant’s application filed on 5 December 2006.
3.The RRT decision has been the subject of judicial review in prior proceedings before this Honourable Court, the Federal Court and the High Court.
Particulars
see page 5 of the Applicant’s application filed on 5 December 2006.
Paragraph (e) of the Affidavit of the Applicant sworn 30 November 2006 and filed 5 December 2006.
4.By operation of the transitional provisions to the Migration Litigation Reform Act 2005, the Applicant is taken to have been actually notified of the MRT’s decision on 1 December 2005.
5.Section 477 of the Migration Act (the “Act”):
(a) requires an application to the Federal Magistrates Court to “be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision”; and
(b) provides that the “Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days”.
6.Pursuant to section 477(2)(a) of the Act, applications for an extension of time must be made to the Court “within 84 days of the actual (as opposed to deemed) notification of the decision”.
7.More than 84 days have passed since 1 December 2005.
8.The Applicant has not made his application to the Court within 28 days of 1 December 2005, nor did he apply for an extension of time within which to make his application within 84 days of 1 December 2005.
9.Accordingly, the application has not been made in accordance with section 477(1) of the Act.
The affidavit of Sharon Anne Burnett (affidavit of Ms Burnett) sworn on 5 March 2007 was admitted into evidence.
Litigation history
The written submissions filed by the first respondent in these proceedings provide a convenient summary of the applicant’s litigation history. I adopt paragraphs 1 to 10 of those submissions for the purpose of this judgment:
1.On 22 September 2003, the Second Respondent made a decision relating to the Applicant (“the decision”).(affidavit of Ms Burnett, para.3)
2.On 15 October 2003, the decision was handed down pursuant to section 430B of the Migration Act 1958 (Cth) (“the Act”).(affidavit of Ms Burnett, para.3)
3.The Applicant has stated that he received notification of the decision on 15 October 2003.
4.On 22 October 2003 the Applicant applied to the Federal Magistrates Court for judicial review of the decision.(affidavit of Ms Burnett, para.4)
5.On 5 October 2005 Federal Magistrate Barnes of the Federal Magistrates Court dismissed the Applicant’s application for judicial review.(affidavit of Ms Burnett, para.5) (SZBSM v Minister for Immigration [2005] FMCA 1490)
6.On 24 October 2005 the Applicant filed a notice of appeal in the Federal Court of Australia in proceedings NSD2009 of 2005.(affidavit of Ms Burnett, para.6)
7.On 30 January 2006 the Applicant filed an amended notice of appeal in the Federal Court of Australia in proceedings NSD2009 of 2005.(affidavit of Ms Burnett, para.7)
8.On 19 April 2006 Justice Rares of the Federal Court of Australia dismissed with costs the Applicant’s notice of appeal in proceedings NSD2009 of 2005.(affidavit of Ms Burnett, para.8) (SZBSM v Minister for Immigration [2006] FCA 569)
9.On 15 May 2006 the Applicant filed an application for special leave in the High Court of Australia in proceedings S139 of 2006.(affidavit of Ms Burnett, para.9)
10.On 9 November 2006 Justice Hayden and Crennan dismissed the Applicant’s application for special leave.(affidavit of Ms Burnett, para.10) (SZBSM v Minister for Immigration [2006] HCA Trans 607)
Submissions and reasons
The applicant appeared before me on the first Court date of
13 February 2007. It was foreshadowed that the respondent would seek to have the application dismissed on the grounds that this Court does not have jurisdiction to hear the matter, and that it was an abuse of process of the Court. I set the matter down for a show cause hearing and indicated to the applicant the issues that he would need to address at that hearing. At the show cause hearing, I gave the applicant the opportunity to make oral submissions in support of his application and the written submissions he had previously filed. The applicant said that he sought more time to enable him to obtain material to support his case.
I said to the applicant that I was not prepared to grant an adjournment for the reason given because it was not relevant to the matter before the Court. I also said to the applicant that I proposed to deal with this application on the basis that the Court does not have jurisdiction under s.476 of the Act, and I will return to this below. However, I initially indicated to the applicant that this application was an abuse of process of the Court and was “plainly untenable and unarguably doomed to fail”: NBGZ v Minister for Immigration [2005] FCAFC 119 at [61]. The applicant initially sought review of the Tribunal’s decision in this Court before Barnes FM. Her Honour remarked in SZBSM v Minister for Immigration [2005] FMCA 1490 at [21]:
No jurisdictional error has been established in the Tribunal reasons or procedures. Accordingly the Tribunal decision is a privative clause decision under section 474 of the Migration Act 1958 (C’th) and the application must be dismissed.
I acknowledge that the applicant exercised his right to appeal to the Federal Court in proceedings NSD 2009 of 2005. Justice Rares dismissed the application on 19 April 2006 and concluded in SZBSM v Minister for Immigration [2006] FCA 569 at [16] – [17]:
16.Her Honour, the trial judge, proceeded to examine the appellant's claims in a way which does not reveal any error and I agree with her Honour's findings for the reasons that she gave that the grounds adumbrated by him at the hearing should be rejected. At the call over, I raised a question as to whether there was any basis to consider that the Tribunal had used material which had not been provided by the appellant and was not otherwise excepted from the requirement of notification pursuant to s 424A (1) of the Act, by reason of what appeared in pars 18 and 47 of the Tribunal's reasons.
17. I need not set those out, as they record what had been the original claim of the appellant and its revision at the hearing to a different claim. The Tribunal, I am satisfied, was identifying the claim which the appellant was putting forward in those paragraphs and then moved to consider that claim as opposed to using information that had previously been put forward as a claim in a way that formed a reason for rejecting the application for review. For these reasons, the appeal must be dismissed.
The applicant then sought special leave from the High Court in proceedings S139 of 2006. Justice Hayne made the following observation in SZBSM v Minister for Immigration [2006] HCA Trans 607:
The applicant’s written submissions raise no question of principle that would warrant the grant of special leave to appeal to this Court. There is no reason to doubt the conclusion of Rares J that the Tribunal was not shown to have made any jurisdictional error.
The new application filed in this Court on 5 December 2006 was an attempt to re-litigate a case already disposed of and should be dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
This applicant faces the significant problem of time limits. As these proceedings were filed under the Act as altered by the Migration Litigation Reform Act 2005 (Cth), this places the applicant within the operation of s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has the power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision and the Court is “satisfied that it is within the interest of the administration of justice to do so.” I am satisfied that the response filed by the respondents is correct and that this application should be dismissed.
Conclusion
As the applicant is deemed by law to have been notified of the decision on 1 December 2005, the applicant had until 23 February 2006 to make an application to the Court. It was not until 5 December 2006 that an application to the Court for review of that decision was made. That is clearly outside the 84 day period from actual notification of the decision. Consequently, the Court does not have jurisdiction under s.476 of the Act to hear this matter. The application filed on
5 December 2006 must be dismissed on the ground that it is incompetent. Besides the matter being out of time, I am also satisfied that the application is an abuse of process as the Tribunal decision has been found to be devoid of jurisdictional error on three previous occasions.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $600.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 March 2007
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