FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1688 |
| MIGRATION – Refusal of protection visa – application to review delegate’s decision – application incompetent – dismissed at first court date. |
| Migration Act 1958 (Cth), ss.476, 476(2)(a), 476(4)(a), Pts 5, 7 SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 |
| Applicant: | SZCAT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2890 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 1 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | The applicant in person |
| Counsel for the First Respondent: | Ms H. Dejean |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed as incompetent.
The applicant must pay the first respondent’s costs in the sum of $800.
Direct that no further application for review of the decision of the Refugee Review Tribunal dated 21 December 2001 and handed down on 24 January 2002 or for review of the decision of the delegate of the first respondent dated 17 November 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2890 of 2006
| SZCAT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter, the applicant filed on 9 October 2006 an application for an order that the respondents show cause why a remedy should not be granted under the Court’s jurisdiction conferred by s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision made under the Migration Act. The decision is identified by the application and the supporting affidavit as that of a delegate of the Minister, Keith Dixon, made on 19 November 1999. The decision refused an application for a protection visa lodged on 14 October 1999.
The application was made returnable before me today. Under the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) r.10.01(2), the Court has power to hear and determine all or part of a proceeding on a final basis at a first Court date, and this also applies to applications invoking the jurisdiction under s.476 of the Migration Act (note the opening words to r.44.11). Rule 44.11(a) also allows the Court to dismiss an application at a first court date on an interlocutory basis by considering whether the application raises an arguable case for the relief claimed. Clearly both powers to dismiss a case at a first court date should be exercised cautiously, and only in appropriate circumstances.
I rarely exercise the power of immediate dismissal, and only do so where there is an incontestable absence of jurisdiction or merit, and where the applicant has sufficiently been put on notice by the respondent of the point. In the present case, the respondent has filed and served a Response raising a clear point going to the competence of the matter.
The point is that the Court’s jurisdiction under s.476 does not encompass all decisions made under the Migration Act. Specifically, s.476(2)(a) provides that the Court “has no jurisdiction in relation to… a primary decision.” In s.476(4)(a) “primary decision” is defined as “a privative clause decision or purported privative clause decision …(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); …”
In the present case the decision of Mr Dixon was reviewable by the Refugee Review Tribunal under Part 7. Indeed, the applicant did seek review under Part 7, and a decision was handed down by that Tribunal on 24 January 2002 which affirmed Mr Dixon’s decision.
The applicant then pursued extensive judicial review litigation in relation to the Tribunal’s decision all the way to the High Court, and then commenced a second proceeding in this Court which was dismissed by Driver FM. His decision was upheld by Whitlam J (see SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549). The history of the applicant’s litigation which is set out in his Honour’s judgment might well, if the Court had jurisdiction in the present matter, have resulted in the dismissal of the application as an abuse of process.
However, for the reasons I have given above, in my opinion, the application is indisputably outside the jurisdictional competence of the Court. In my opinion, it is appropriate to dismiss the application today, without putting the Commonwealth or the applicant to further expense.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Yvette Harvey
Date: 16 November 2006
- AGLC
- SZCAT v Minister for Immigration [2006] FMCA 1688
- Case
- [2006] FMCA 1688
- Decision Date
CaseChat Overview and Summary
The primary legal issue the Court had to decide was whether the Court had jurisdiction to hear the application for review of the delegate's decision. The Court considered that the decision in question was a "primary decision" under section 476(4)(a) of the Migration Act as it was a privative clause decision reviewable under Part 7. The applicant had previously sought review under Part 7, and the decision was affirmed by the Refugee Review Tribunal. The applicant further pursued judicial review litigation which ultimately was dismissed by the High Court. Given the nature of the decision and the previous litigation history, the Court concluded that the application was outside the jurisdictional competence of the Court under section 476.
The Court exercised its discretion to dismiss the application as incompetent due to the incontestable absence of jurisdiction. The Court noted that it rarely exercises the power of immediate dismissal and only does so where there is a clear absence of jurisdiction or merit, and the applicant has been sufficiently notified by the respondent of the point. The Court further ordered that the applicant must pay the Minister's costs of $800 and that no further applications for review of the specified decisions would be accepted without prior leave of the Court.
Orders
Orders of the court
1.
The application is dismissed as incompetent.
2.
The applicant must pay the first respondent’s costs in the sum of $800.
3.
Direct that no further application for review of the decision of the Refugee Review Tribunal dated 21 December 2001 and handed down on 24 January 2002 or for review of the decision of the delegate of the first respondent dated 17 November 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In this matter, the applicant filed on 9 October 2006 an application for an order that the respondents show cause why a remedy should not be granted under the Court’s jurisdiction conferred by s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision made under the Migration Act. The decision is identified by the application and the supporting affidavit as that of a delegate of the Minister, Keith Dixon, made on 19 November 1999. The decision refused an application for a protection visa lodged on 14 October 1999. The application was made returnable before me today. Under the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) r.10.01(2), the Court has power to hear and determine all or part of a proceeding on a final basis at a first Court date, and this also applies to applications invoking the jurisdiction under s.476 of the Migration Act (note the opening words to r.44.11). Rule 44.11(a) also allows the Court to dismiss an application at a first court date on an interlocutory basis by considering whether the application raises an arguable case for the relief claimed. Clearly both powers to dismiss a case at a first court date should be exercised cautiously, and only in appropriate circumstances. I rarely exercise the power of immediate dismissal, and only do so where there is an incontestable absence of jurisdiction or merit, and where the applicant has sufficiently been put on notice by the respondent of the point. In the present case, the respondent has filed and served a Response raising a clear point going to the competence of the matter. The point is that the Court’s jurisdiction under s.476 does not encompass all decisions made under the Migration Act. Specifically, s.476(2)(a) provides that the Court “has no jurisdiction in relation to… a primary decision.” In s.476(4)(a) “primary decision” is defined as “a privative clause decision or purported privative clause decision …(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); …” In the present case the decision of Mr Dixon was reviewable by the Refugee Review Tribunal under Part 7. Indeed, the applicant did seek review under Part 7, and a decision was handed down by that Tribunal on 24 January 2002 which affirmed Mr Dixon’s decision. The applicant then pursued extensive judicial review litigation in relation to the Tribunal’s decision all the way to the High Court, and then commenced a second proceeding in this Court which was dismissed by Driver FM. His decision was upheld by Whitlam J (see SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549). The history of the applicant’s litigation which is set out in his Honour’s judgment might well, if the Court had jurisdiction in the present matter, have resulted in the dismissal of the application as an abuse of process. However, for the reasons I have given above, in my opinion, the application is indisputably outside the jurisdictional competence of the Court. In my opinion, it is appropriate to dismiss the application today, without putting the Commonwealth or the applicant to further expense.