SZBZF v Minister for Immigration
[2006] FMCA 145
•6 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBZF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 145 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of judicial review application in the light of earlier judicial determination that the RRT decision is a privative clause decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.477(1A) |
| SZBML v Minister for Immigration [2004] FMCA 431 SZCTT v Minister for Immigration [2004] FMCA 498 SZDCN v Minister for Immigration [2004] FMCA 103 |
| Applicant: | SZBZF |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2914 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 6 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Mansour Clayton Utz |
INTERLOCUTORY ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
No further application for review by this applicant of the decision of the Refugee Review Tribunal handed down on 28 October 2003 shall be accepted for filing except by leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2914 of 2005
| SZBZF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interlocutory application filed on 20 January 2006 by the respondent Minister. The Minister seeks the summary dismissal of a judicial review application filed on 11 October 2005. The judicial review application seeks review of a decision of the Refugee Review Tribunal (“the RRT”) that was handed down on 28 October 2003. The Minister asserts that the judicial review application is incompetent and, in addition or in the alternative, that the application should be dismissed as disclosing no reasonable cause of action, or because it is vexatious or an abuse of process, or because the application is barred by res judicata and estoppel.
The Minister's application is supported by the affidavit of Andrea Maree Mansour made on 16 January 2006. I received that affidavit as evidence and I accept the accuracy of the facts deposed to. The relevant background is set out in paras.2 and 3 of the Minister's written submissions which I adopt for the purposes of this judgment:
Chronology
DATE EVENT 23 January 2003 Application for Protection Visa lodged. 28 February 2003 A delegate of the Minister (the "Delegate") refused to grant the Protection Visa. 20 March 2003 The Applicant applied to the Refugee Review Tribunal ("RRT") for review of the Delegate's decision. 28 October 2003 The RRT handed down its decision affirming the Delegate’s decision (the "RRT Decision").[1] 24 November 2003 The Applicant applied to the Federal Magistrates Court of Australia for review of the RRT Decision commencing proceedings SZ2543 of 2003.[2] ("Proceedings SZ2543 of 2003") 29 September 2004 Federal Magistrate Barnes dismissed Proceedings SZ2543 of 2003.[3] 13 October 2004 The Applicant appealed to the Federal Court of Australia from the judgment of Federal Magistrate Barnes commencing proceedings NSD1496 of 2004. ("Proceedings NSD1496 of 2004"). 30 November 2004 Justice Sackville dismissed Proceedings NSD1496 of 2004. [4] 23 December 2004 The Applicant applied to the High Court of Australia in Proceedings S515 of 2004 for special leave to appeal from the judgment of Justice Sackville. 30 August 2005 Their Honours Justices McHugh and Heydon dismissed the application for special leave.[5] [1] See pages 1 to 17 of the Exhibit "AMM-1" to the affidavit of Andrea Maree Mansour sworn 16 January 2005 ( the "Affidavit").
[2] See pages 18 to 21 of the Exhibit "AMM-1" to the Affidavit.
[3] See pages 22 to 33 of the Exhibit "AMM-1" to the Affidavit.
[4] See pages 37 to 40 of the Exhibit "AMM-1" to the Affidavit.
[5] See page 42 of the Exhibit "AMM-1" to the Affidavit.
In summary the respondent seeks dismissal of the application on various grounds that flow from the applicants having previously sought judicial review under section 39B of the Judiciary Act 1903 (Cth):
a)in this Court (which was dismissed);
b)in the Federal Court, by way of appeal from the decision referred to in the preceding paragraph (which was dismissed);
c)in the High Court, by way of special leave application from the decision referred to in the preceding paragraph (which was dismissed).
(togther the "previous proceedings").
The RRT decision the subject of these proceedings has already been reviewed by this Court. On 29 September 2004 Federal Magistrate Barnes dismissed an earlier application to review the same decision. In paragraph 28 of her decision Her Honour found that the decision of the RRT was free from any jurisdictional error. It is a necessary consequence of that decision that the RRT decision was found to be a privative clause decision. The decision of Federal Magistrate Barnes was affirmed on appeal in the Federal Court by Sackville J. In the High Court McHugh and Heydon JJ refused an application for special leave to appeal.
I conclude from the foregoing that the question of whether or not the RRT decision is a privative clause decision has been conclusively answered in the affirmative. Because the RRT decision has already been found to be a privative clause decision, this Court has no jurisdiction to entertain the present application.
I agree with and adopt for the purposes of this judgment paragraphs 4 and 5 of the Minister's written submissions:
The respondent contends that the Federal Magistrates Court lacks jurisdiction to review the decision of the Federal Magistrates Court, the application being out of time in the sense contemplated by s.477(1A) of the Migration Act 1958 (Cth) and the RRT decision having previously been found to be a privative clause decision in the previous proceedings.[6]
The fact of the Federal Magistrates Court prior decision that the RRT decision is a privative clause decision acts as a complete bar to any further review of the RRT decision and, relevantly this proceeding.
[6] SZCTT v Minister for Immigration [2004] FMCA 498; SZBML v Minister for Immigration [2004] FMCA 431; SZDCN v Minister for Immigration [2004] FMCA 103 - all upheld on appeal.
I also adopt paragraphs 11 and 12:
The first element referred to by Lindgren J is established in this case by virtue of the orders of Federal Magistrate Barnes and Justice Sackville. Those decisions are final.
The second element is established because the grounds claimed are substantially the same as the grounds claimed in proceedings SZ2543 of 2003 and/or NSD1496 of 2004.
There is nothing new in the present judicial review application. It follows a form of template with which the Court is familiar. I will dismiss the judicial review application as incompetent.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,500. That is a party/party assessment which I accept. The applicant indicated that he may require time to pay. I advised him to take that issue up with the Minister's legal advisers.
I order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500. For completeness, the Refugee Review Tribunal should be joined as the second respondent to the application.
I direct that no further application by this applicant to review the decision of the RRT handed down on 28 October 2003 be accepted for filing in this Court except by leave.
That order reflects both the vexatious element in repeated applications having been made in similar terms and the need for an extension of time for any application filed on or after 1 December 2005.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 February 2006
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