SZCJY v Minister for Immigration
[2006] FMCA 839
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJY v MINISTER FOR IMMIGRATION | [2006] FMCA 839 |
| MIGRATION – Review of delegate’s decision – refusal of a protection visa – show cause application incompetent – application out of time – no jurisdiction to review primary decision – decision of delegate reviewed by Refugee Review Tribunal – that decision the subject of earlier judicial review. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.476, 477 |
| Applicant: | SZCJY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG1394 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms A Mansour Clayton Utz |
INTERLOCUTORY ORDERS
The name of the respondent is to be amended to delete the words “and Indigenous”.
The objection to competency is upheld.
The application is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $1,000, in accordance with rule 44.15(1) and Item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1394 of 2006
| SZCJY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) for an order to show cause why relief should not be granted in relation to a decision of a delegate of the Minister. The application was filed on 12 May 2006 and asserts that the decision of the delegate was made on 1 May 2003. The applicant asserts notification of the decision on 7 May 2003. The delegate refused to grant the applicant a protection visa.
The application was accompanied by an affidavit which I received, setting out the decision of the delegate and the reasons for it. The Minister responded to the application on 7 June 2006. The Minister disputes the competence of the application and also seeks summary dismissal pursuant to the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules). In support of the response the Minister relies upon the affidavit of Andrea Marie Mansour made on 7 June 2006 and filed on the same day. I also received that affidavit.
It was obvious from the papers that there is a serious jurisdictional objection to this application. The affidavit of Ms Mansour establishes that the delegate's decision was reviewed by the Refugee Review Tribunal (“the RRT”) and the decision of the RRT has been the subject of judicial review proceedings, both in this Court and the Federal Court. It appears from the judgments in those proceedings that the RRT decision has been found to be free from jurisdictional error. The applicant has not sought, by this present application, to seek to further challenge the decision of the RRT. Rather, he seeks to challenge the decision of the delegate of the Minister which preceded it.
However, since 1 December 2005, ss.476(2)(a) and (4)(a) of the Migration Act have removed from this Court jurisdiction to review primary decisions in cases such as the present, whether or not the primary decision is a privative clause decision. As has been found in this Court on a number of previous occasions, this Court has, since 1 December 2005, no jurisdiction to review a decision of a delegate of the Minister that was reviewable by a review tribunal. The present decision not only was reviewable, it was in fact reviewed by the RRT.
I find that this Court has no jurisdiction to entertain the application which relates to a primary decision as defined in s.476(4)A of the Migration Act.
Even if I was wrong in that finding, the Court would lack jurisdiction because of the operation of s.477 of the Migration Act. Applications to the Court, where the Court otherwise has jurisdiction to review migration decisions, must be made within 28 days of actual notification of the decision, although the Court is able to extend that time limit by a period of up to 56 days. The applicant asserts notification of the relevant decision in 2003. The effect of item 42 of schedule 1 to the Migration Litigation Reform Act 2005 (Cth) is that the applicant is taken to have been notified of the decision on 1 December 2005.
The application is well outside the maximum period of 84 days within which an application can be entertained if it seeks an extension of time. For that reason also, I find that this Court lacks jurisdiction to entertain the application.
Even if this Court had a jurisdiction to review the decision of the delegate, an obvious issue would have remained about the prospect of success of the application given that the delegate's decision was subsumed in the decision of the RRT which followed it. However, the jurisdictional objection must be considered first.
I uphold the objection to competency. I order that the application be dismissed as incompetent.
The application having been dismissed, the Minister seeks an order for costs in accordance with the Court scale. That scale provides for an award of costs of $1,000 in the present circumstances. The applicant did not wish to be heard on costs.
I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(a) of Part 2 to Schedule 1 to the Federal Magistrates Court Rules. I will further direct that the name of the Minister in the application be amended by deleting the words "and Indigenous".
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 June 2006
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