SZCKB v MIMA

[2006] FMCA 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 804

MIGRATION – Visa – protection visa – Refugee Review Tribunal -application for review of Refugee Review Tribunal decision affirming delegate's decision not to grant a protection visa – jurisdiction – where Tribunal found it did not have the jurisdiction to entertain the application for review – application out of time.

PRACTICE & PROCEDURE – Abuse of process – where applicant seeks a second review of a decision that has already been reviewed.

Migration Act 1958 (Cth), ss.412, 476

NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1246 referred to
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
SZCKB v Minister for Immigration [2005] FMCA 1905

Applicant: SZCKB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1059 of 2006

Judgment of: Scarlett FM

Hearing date: 29 May 2006

Date of Last Submission: 29 May 2006

Delivered at: Sydney

Delivered on: 29 May 2006

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed as an abuse of process.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,500.00.

3. No further applications for review of the decisions of the refugee Review Tribunal made on 20 March 2006 (N05/52936) and 27 March 2006 (N052936) or for review of the decision of the delegate of the Respondent dated 7 July 2000 shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1059 of 2006

SZCKB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 22^nd March 2006. The Tribunal decided that it does not have jurisdiction to deal with the applicant’s application for review.

Background

1. The applicant applied for a protection visa on 14^th June 2000.

   
   

   A delegate of the Minister refused the application on 7^th July 2000.

   
   

   The applicant then applied to the Refugee Review Tribunal for a review of that decision on 2^nd August 2000.

2. On 20^th March 2002 the Refugee Review Tribunal affirmed the delegate’s decision. As well as seeking judicial review of that decision, the applicant sought the intervention of the Minister under s. 417 of the Migration Act. This was unsuccessful.

3. The applicant then lodged a second application for review of the delegate’s decision on 21^st December 2005. It is this application that led to the decision of the Tribunal that it had no jurisdiction.

4. The Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the time prescribed by s. 412 of the Migration Act and because the Tribunal had already reviewed the delegate’s decision. As a result, the Tribunal wrote to the applicant on 23^rd January 2006 and the applicant replied on 3^rd March 2006, making written submissions.

5. The Tribunal noted that an application for review must be lodged at a registry of the Tribunal within 28 days of the notification of the decision and there is no provision for extension of time (s. 412(1)(b)). The Tribunal was satisfied that the applicant was taken to have been notified of the original decision of the delegate on 14^th July 2000.

   
   

   The application for review had to be lodged by 11^th August 2000, but it was not lodged until 21^st December 2005. It was well outside the prescribed time limit by over 5 years.

6. In any event, the Tribunal had already received an application to review that decision within the time limit and had actually conducted a review. Accordingly, the Tribunal had already discharged its function to conduct a review and therefore had no jurisdiction to entertain the second application for review.

The application to the Federal Magistrates Court

1. The applicant filed an application under the Migration Act on

   
   

   13^th April 2006 seeking a remedy under s. 476 of the Migration Act. The application sets out 5 grounds, numbered, rather curiously,

   
   

   1, 2, 3, 4 and 1.

2. The grounds are:

   ·The Tribunal denied the procedural fairness and, in so doing, made breach of natural justice.

   ·The procedures that were required by the Migration Act 1958
   (the Act) or the Migration Regulations 1994 to be observed in connection with the making of the decision were not observed.

   ·The tribunal ignored the merits of the application.
   Tribunal decision amounts to breach mandatory requirement of the Migration Act 1958 (the Act).

   ·The Tribunal failed to follow the mandatory requirement of the sections 425 and 425A of the Migration Act 1958 (the Act).
   The Tribunal dined (sic) to giving me an opportunity to appear before the Tribunal for the oral evidence.

   ·The Tribunal decision was unjust and made it without taking in to account the full gravity of the fact and circumstances.

Conclusions

1. The grounds of the application amount to no more than specious nonsense and the application is entirely without merit. The applicant has not seen fit to attend court and has provided no explanation for his absence. I note that he gives his home address as an inner suburb of Sydney and I take judicial notice of the fact that it is within walking distance of the court.

2. The application for review to the Tribunal was more than 5 years out of time and sought a second review of a decision that had already been reviewed by the Tribunal.

3. The Tribunal’s first decision was dated 16^th April 2002 and handed down on 20^th March 2002. The applicant has already sought judicial review of that decision in the Federal Court, the Federal Magistrates Court and the High Court. A detailed history of the applicant’s litigation is set out in the affidavit of Zoë Elizabeth Brauer, solicitor, sworn and filed on 26^th May 2006 on behalf of the solicitors for the respondent Minister.

4. On 8^th October 2002 in the Federal Court, Hill J dismissed the applicant’s application for review: NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1246. The applicant’s appeal against this decision was dismissed by the Full Court of the Federal Court on 23^rd May 2003: Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102.

5. The applicant then sought special leave to appeal to the High Court of Australia. That application was deemed abandoned on

   
   

   24^th December 2003.

6. Undaunted by this series of rejections, the applicant then sought to start the litigation process again, by applying to the Federal Magistrates Court on 6^th January 2004. On 12^th December 2005 Raphael FM dismissed that application with costs: SZCKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1905. It was after that refusal that the applicant lodged his application for review with the Refugee Review Tribunal.

7. I am satisfied that this application is an abuse of process. It has no merit whatsoever and is merely a scam to achieve a collateral purpose, namely to set up a spurious legal proceeding to enable the prolongation of a bridging visa. Fortunately, the respondent Minister has seen this particular scheme before and the Minister’s lawyers have acted promptly in preparing and filing a response and an affidavit setting out the applicant’s history of litigation.

8. The application is an abuse of the process of the court. It will be dismissed with costs. I will make an order restraining any further applications for review of the decisions without leave of the court.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  5 June 2006