SZCGM v Minister for Immigration
[2006] FMCA 1574
•24 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCGM v MINISTER FOR IMMIGRATION | [2006] FMCA 1574 |
| MIGRATION – Summary dismissal of show cause application on the first court date – application incompetent. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| SZCGM v Minister for Immigration [2005] FMCA 151 SZCGM v Minister for Immigration [2005] FCA 1196 SZCGM v Minister for Immigration (2006) HCATrans 511 SZCGM v Minister for Immigration [2006] HC S444/2005 S328 of 2003 v Minister for Immigration [2006] FMCA 869 SZFIO v Minister for Immigration [2006] FCA 663 |
| Applicant: | SZCGM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG2872 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 24 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms H Blackman Blake Dawson Waldron |
INTERLOCUTORY ORDERS
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed as incompetent.
No further application by this applicant to review the decision of the delegate made on 2 May 2003 or the decision of the Refugee Review Tribunal handed down on 25 November 2003 is to be accepted for filing by this Court, except by leave.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2872 of 2006
| SZCGM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 9 October 2006. The application seeks review of a decision of a delegate of the Minister. The application is supported by an affidavit by the applicant annexing the delegate’s decision record. The delegate’s decision was made on 2 May 2003, and the delegate refused the applicant’s application for a protection visa. In answer to the question asking when the applicant was notified of the delegate’s decision, the applicant answered that the notification was never validly received. The Minister has filed a response to the application. The response raises fundamental objections to the application. In the light of those objections, I ordered that there be an immediate show cause hearing today.
The Minister’s response is supported by the affidavit of Hayley Anne Blackman. That affidavit annexes a procedural history which I incorporate in these reasons.
Letter to Applicant from Department of Immigration and Multicultural and Indigenous Affairs notifying delegate's decision | 02.05.2003 |
| Delegate's Decision (CLF2003/7985) | 02.05.2003 |
| Application to Refugee Review Tribunal (N03/46486) | 16.05.2003 |
| Refugee Review Tribunal decision record (N03/46486) | 25.11.2003 |
| Application to Federal Magistrates Court SZ2840/2003 | 22.12.2003 |
| SZCGM v MIMIA [200] FMCA 151 | 07.02.2005 |
| Amended Notice of Appeal to Federal Court NSD254/2005 | 30.05.2003 |
| SZCGM v MIMIA [2005] FCA 1196 | 09.09.2005 |
| Application for special leave to appeal to High Court S444/2005 | 19.09.2005 |
| SZCGM v MIMIA [2006] HCA Trans 511 – copy of transcript | 04.09.2006 |
| SZCGM v MIMIA [2006] HC S444/2005 – copy of sealed order | 07.09.2006 |
The affidavit and its annexures speak for themselves. The affidavit establishes to my satisfaction that the applicant sought review of the delegate’s decision before the Refugee Review Tribunal (“the Tribunal”) on 16 May 2003. The Tribunal handed down its decision affirming the delegate’s decision on 25 November 2003. The applicant sought judicial review of that decision in this court. He was unsuccessful, see SZCGM v Minister for Immigration [2005] FMCA 151.
The applicant then appealed, unsuccessfully, to the Federal Court, see SZCGM v Minister for Immigration [2005] FCA 1196. Finally, the applicant unsuccessfully sought special leave to appeal to the High Court, see SZCGM v Minister for Immigration (2006) HCATrans 511.
In the light of that evidence, I make the following findings.
The delegate’s decision sought to be reviewed pursuant to the present application was reviewable and was in fact reviewed by the Tribunal. Secondly, the Tribunal’s decision has been found to be valid. Thirdly, the applicant must have been notified of the delegate’s decision before he sought review on the merits in the Tribunal.
There are a number of legal consequences from those findings.
The first and fatal legal conclusion for the application is that the decision of the delegate is a primary decision for the purposes of the Migration Act as it now stands, and hence is not reviewable in this court, see S328 of 2003 v Minister for Immigration [2006] FMCA 869. Secondly, even if there was some error made by the delegate, it would be legally irrelevant. The decision of the delegate is subsumed into the decision of the Tribunal, see SZFIO v Minister for Immigration [2006] FCA 663. Thirdly, even if it were possible for the applicant to overcome the first two objections to his application, it would be now out of time. The application should be dismissed as incompetent, and I will so order.
In SZFIO v Minister for Immigration [2006) FMCA 139, I also made orders seeking to prevent further applications in like circumstances except by leave. I note that Federal Magistrate Emmett took the same approach in S328 of 2003 v Minister for Immigration. The present application is in my view patently frivolous and vexatious and an abuse of the court’s process. I will order that no further application by this applicant to review the decision of the delegate made on 2 May 2003 or the decision of the Refugee Review Tribunal handed down on
25 November 2003 is to be accepted for filing by this Court, except by leave.
In the present circumstances, the Minister is entitled to indemnity costs. The Minister’s actual costs incurred to this point are $1,200.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,200.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 2 November 2006
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