SZBVE v Minister for Immigration

[2006] FMCA 1671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBVE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1671

MIGRATION – Review of RRT decision − where application previously the subject of judicial review − whether court has jurisdiction in relation to a primary decision of the delegate − where application made out of time − whether the court has jurisdiction to hear and determine the application.

Migration Act 1958, ss.476, 477
Migration Litigation Reform Act 2005, Part II Item 42 Schedule 1

Applicant: SZBVE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2390 of 2006

Judgment of: Raphael FM

Hearing date: 1 November 2006

Date of Last Submission: 1 November 2006

Delivered at: Sydney

Delivered on: 1 November 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Substantive application dismissed.

2. The applicant not be permitted to file any application referable to a decision of the delegate of the Minister dated 5 March 2003 or a decision of the Refugee Review Tribunal dated 12 September 2003 handed down on 8 October 2003 without leave of the court.

3. Applicant pay the respondent’s costs assessed in the sum of $950.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2390 of 2006

SZBVE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 28 August 2006 the applicant filed an application under the Migration Act 1958 (the “Act”) with this court.  He sought review of a decision of the Refugee Review Tribunal (“RRT”) made on 12 September 2003 and of a decision of a delegate of the Minister made on 5 March 2003.  The application states that he received notification of the RRT decision on 13 October 2003 and of the delegate’s decision on 7 March 2003.  He makes a number of claims which, if accepted, could amount to jurisdictional error on the part of the Tribunal and provides authority for the proposition that the court is entitled to provide judicial review of a decision of the delegate.

2. Given the dates mentioned above it will come as no surprise to learn that this is not the first run through the courts that this applicant has taken part in.  He filed an application to this court on 5 November 2003 seeking review of the decision of the Tribunal.  That application was amended on 27 September 2004 and given a substantive hearing by Driver FM on 17 June 2005.  As was his right the applicant, being dissatisfied with Driver FM’s decision, appealed it to the Federal Court.  The appeal was heard on 14 September 2005 by Madgwick J.  The appeal was dismissed. The applicant then filed an application for special leave to appeal to the High Court.  On 3 August 2006 Kirby and Callinan JJ dismissed the application for special leave to appeal. 

   
   

   On 28 August 2006 the present application was lodged. 

3. Pursuant to the provisions of s.476(2)(a) of the Act this court has no jurisdiction in relation to a primary decision, which the decision of the delegate is. In any event it has been long established that where there exists an avenue for full merits review of an administrative decision the court will be reluctant to grant judicial review as a matter of discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 as per Mason J at p.309; SVTB v Minister for Immigration [2004] FCA 1610 as per Lander J at [65]; Hill v Green (1999) NSWLR 161 as per Fitgerald JA at [241].

4. Insofar as the decision of the Refugee Review Tribunal is concerned, as this was received by the applicant on 13 October 2003 he is deemed, for the purposes of Part II Item 42 of Schedule 1 of the Migration Litigation Reform Act 2005, for the purposes of s.477 of the Act to have actually been notified of the decision on 1 December 2005.

   
   

   He was then required under s.477(1) of the Act to make his application within 28 days of 1 December 2005. He did not do so. The court has some power to extend time in respect of an application not filed within 28 days but the maximum time permitted by the Act is 56 days which would have expired on 23 February 2006. The applicant filed his application on 28 August 2006 and the court is not permitted to entertain it.

5. In light of the above matters the court has no jurisdiction to hear this case. Even if it did I would have refused to do so given that the issues would appear to have been canvassed fully in previous decisions of this court, the Federal Court and the High Court of Australia. I dismiss the substantive application. I order that the applicant not be permitted to file any application referable to a decision of the delegate of the Minister dated 5 March 2003 or a decision of the Refugee Review Tribunal dated 12 September 2003, handed down on 8 October 2003 without leave. I order that the applicant to the substantive proceedings pay the respondent’s costs which I assess in the sum of $950 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: