SZCKB v Minister for Immigration
[2005] FMCA 1905
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKB v MINISTER FOR IMMIGRATION | [2005] FMCA 1905 |
| MIGRATION – Where applicant seeks review of an RRT decision that has already been determined by the Federal Court. |
| Migration Act 1958, ss.424A, 474, 477 Federal Magistrates Court Rules |
| SAAP v Minister for Immigration [2005] HCA 24 ApplicantVEAL of 2002v Minister for Immigration [2005] HCA 72 A210 of 2002 v Minister for Immigration [2004] FCA 579 |
| Applicant: | SZCKB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG26 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG26 of 2004
| SZCKB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 20 March 2002 the Refugee Review Tribunal affirmed a decision of the Minister's delegate refusing the applicant a protection visa. On 6 May 2002 the applicant filed an application in the Federal Court for an order of review of the decision of the RRT. On 8 October 2002 Hill J dismissed that application. On 28 October 2002 the applicant filed a notice of appeal against his Honour's judgment and on 23 May 2003 the Full Bench of the Federal Court dismissed the appeal. On 16 June 2003 the applicant applied for special leave to the High Court of Australia and on 24 December 2003 an appeal was deemed abandoned.
On 6 January 2004, undaunted by his failure in every other court within the jurisdiction, the applicant filed an application to this court seeking review of the same decision of the Refugee Review Tribunal.
But for certain decisions of the High Court of Australia this application would have been a simple matter to deal with on the basis of res judicata. I am satisfied that the grounds upon which this application before me is based are essentially similar to those already heard by Hill J and the Full Bench and which were before the High Court for consideration of special leave.
One of the grounds upon which the applicant argued his case that the Tribunal had fallen into jurisdictional error was that it had failed to comply with the provisions of s.424A(1) of the Migration Act 1958 (the “Act”) when he was not provided in the appropriate manner (in writing) with particulars of what has been described as a "dob in" letter that was before the Tribunal.
There is no suggestion that the Tribunal neglected to inform the applicant of the existence of this letter and the Full Bench of the Federal Court was apprised of the matter and in its extensive judgment took pains to point out that it did not believe that the Tribunal had any obligation to provide the applicant with written notice because it had already provided him with sufficient notice by way of procedural fairness in the discussions which it had with him about it. The Full Bench also agreed that the question of the "dob in" letter was not central to the rejection of the appellant's credit and his evidence.
Since the date of the Full Bench decision the High Court has handed down its decision in two cases; SAAP v Minister for Immigration [2005] HCA 24 and ApplicantVEAL of 2002v Minister for Immigration [2005] HCA 72 when a similar "dob in" letter was discussed.
If the applicant had brought his proceedings today I have little doubt that the Minister would have conceded that his case should be referred back to the Tribunal differently constituted to be heard and determined according to law.
But the proceedings which are before me are proceedings following upon other proceedings in which determinations of law have been made. The first determination of law is that the Tribunal committed no jurisdictional error in the manner in which it came to its conclusions in the applicant's case. It follows from that finding that the decision of the Tribunal is a privative clause decision as defined in s.474 of the Act. Such a decision is final and conclusive and must not be challenged or called into question in any court.
Furthermore, there are provisions in the Act which mandate that any attempt to challenge a privative clause decision must be made within 28 days of notification of that decision (s.477(1)(A) of the Act). The application to this court made by the applicant in January 2004 was longer than 28 days from the date of the Tribunal's decision made in 2002 and I would thus be unable to provide review of it.
The Federal Magistrates Court is sensible of its position in the hierarchy of Federal Courts. It acknowledges that it is bound by decisions of a single judge on appeal and by the Full Bench of the Federal Court. It seems to me that whatever the situation might be in respect of an application commenced within time today, I am bound by the determination of the Full Bench that this is a privative clause decision and I am unable to review it. I would also note that, to the extent that it might be argued that I was entitled to review this application, it seems to me to be one to which Anshun estoppel at the very least would apply and, as was said by the Federal Court in A210 of 2002 v Minister for Immigration [2004] FCA 579, developments in case law are not sufficient to bring a matter within the special circumstances of the exception to that rule of law.
When the applicant appeared before me today I asked him whether he could advise me why I should hear this application in the face of the previous determinations and he told me that he had no protection in his country and that he feared to return. Those reasons are not sufficient in law to allow me to provide the applicant with the review he seeks.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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