SZCNP v Minister for Immigration
[2007] FMCA 1112
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1112 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent. |
| Migration Act 1958 (Cth), ss.474, 477 Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | SZCNP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1862 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 12 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Kantaria Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $750.
The Court directs that no further application by this applicant to review any decision related to his application for a protection visa lodged with the Minister’s Department on 15 July 2002, the decision of the delegate or the review of the delegate’s decision be accepted for filing in this Court without leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1862 of 2007
| SZCNP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”), filed on 14 June 2007. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). That decision was handed down on 17 December 2003. A copy of the decision is annexed to the affidavit of the applicant filed with his application on 14 June 2007. I receive that affidavit and the decision.
There is obviously a threshold difficulty in that the application has been filed out of time. The application asserts actual notification of the Tribunal decision on the date when it was handed down. The Minister drew attention to the jurisdictional issue in his response filed on 22 June 2007:
The Court does not have jurisdiction to hear the Applicant's application.
The Applicant was actually notified of the Second Respondent's decision on 17 December 2003.
Particulars
The Applicant admits on page 2 of his judicial review application ("application") that he was actually notified of the Second Respondent's decision on 17 December 2003.
By operation of the transitional provisions to the Migration Litigation Reform Act 2005 (C'th), the Applicant is taken to have been actually notified of the Second Respondent's decision on 1 December 2005.
Section 477 of the Migration Act 1958 (C'th) ("Act"):
(a)requires an application to the Federal Magistrates Court to "be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision"; and
(b)provides that the "Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days".
Pursuant to section 477(2)(a) of the Act, applications for an extension of time must be made to the Court "within 84 days of the actual (as opposed to deemed) notification of the decision".
More than 84 days have passed since 1 December 2005.
The Applicant did not make his application to the Court within 28 days of 1 December 2005, nor did he apply for an extension of time within which to make his application within 84 days of 1 December 2005.
The Applicant made his application on 14 June 2007.
Accordingly, the application has not been made in accordance with section 477(1) of the Act.
I also received today the affidavit of Saloni Kantaria, filed on 28 January 2007. That affidavit draws attention to previous proceedings in this Court, the Federal Court and the High Court, concerning the same Tribunal decision:
I am a solicitor in the employ of Brigitte Markovic, the solicitor for the Respondents in these proceedings, and have the day to day carriage of these proceedings subject to Ms Markovic's supervision.
For the purposes of this affidavit, I have inspected the files of the First and Second Respondents in relation to the Applicant and based on my inspection of those files, I am able to depose to the following matters.
Exhibited to me at the time of swearing this Affidavit and marked "SK1" is a folder containing copies of documents to which I shall refer in this Affidavit.
Protection (Class XA) Visa
On 15 July 2002, the Applicant lodged an application for a protection (class XA) visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
On 24 October 2002, a delegate of the First Respondent ("delegate") determined not to grant a protection visa to the Applicant.
Review Application
On 23 November 2002, the Applicant applied to the Second Respondent ("Tribunal") for review of the delegate's decision.
On 17 December 2003, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa (the "Tribunal Decision"). Included at pages 1 to 17 of Exhibit "SK1" is a copy of the Tribunal's decision dated 17 December 2003.
Federal Magistrates Court Proceedings 2004
On 21 January 2004, the Applicant filed an application for judicial review of the Tribunal's Decision (proceedings SYG160 of 2004). Included at pages 18 to 24 of Exhibit "SK1" is a copy of the Applicant's application for judicial review filed in the Federal Magistrates Court on 21 January 2004.
On 13 February 2006, Federal Magistrate Smith dismissed the Applicant's application for judicial review. Included at pages 25 to 41 of Exhibit "SK1" is a copy of the orders and reasons for judgment of Federal Magistrate Smith dated 13 February 2006.
Federal Court Proceedings 2006
On 3 March 2006, the Applicant filed a Notice of Appeal in the Federal Court of Australia (proceedings NSD423 of 2006). Included at pages 42 to 46 of Exhibit "SK1" is a copy of the Applicant's Notice of Appeal filed in the Federal Court of Australia on 3 March 2006.On 29 August 2006, Justice Tamberlin dismissed the Applicant's appeal. Included at pages 47 to 57 of Exhibit "SK1" is a copy of the orders and reasons for judgment of Justice Tamberlin dated 29 August 2006.
High Court Proceedings 2006
On 22 September 2006, the Applicant filed an application for special leave to appeal in the High Court of Australia (proceedings S342 of 2006). Included at pages 58 to 60 of Exhibit "SK1" is a copy of the Applicant's application for special leave to appeal filed in the High Court of Australia on 22 September 2006.
On 24 May 2007, Justices Hayne and Crennan dismissed the Applicant's application for special leave to appeal. Included at pages 61 to 64 of Exhibit "SK1" is a copy of the orders of Justices Hayne and Crennan and a transcript of the proceedings dated 24 May 2007.
Federal Magistrates Court Proceedings 2007
On 14 June 2007, the Applicant filed a further application for review of the Tribunal's Decision being the proceedings now before this Honourable Court.
The applicant confirmed to me from the bar table that he had seen both the response and Ms Kantaria's affidavit prior to coming into Court.
The applicant pleaded for more time to present his present application to the Court but I told him I was unwilling to delay the resolution of this matter. The jurisdictional issue is obvious and should be dealt with at the outset. The applicant did not apply to the Court within the time prescribed by s.477 of the Migration Act. Further, it is apparent from the affidavit of Ms Kantaria that s.474 of the Migration Act would, in any event, deprive the Court of jurisdiction, as the decision of the Tribunal has previously been found to be free from jurisdictional error. Further, by repeatedly applying to review the same decision of the Tribunal that has already been found to be valid, the applicant abuses the Court's process.
I will order that the application be dismissed as incompetent.
I will also order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $750.
The Minister should not again vexed by an application from this applicant, seeking review of the same Tribunal decision, or any decision which preceded the Tribunal decision, or any ancillary issue related to the Tribunal decision. I will order that no further application by this applicant to review any decision related to his application for a protection visa lodged with the minister's department on 15 July 2002, the decision of the delegate or the review of the delegate's decision be accepted for filing in this Court without the leave of a Federal Magistrate.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 July 2007
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