SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FMCA 498
•9 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCTT v MINISTER FOR IMMIGRATION | [2004] FMCA 498 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – RRT decision previously reviewed by the Federal Court – no jurisdictional error found by the Federal Court – conclusive outcome that the RRT decision is a privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.474, 477
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
SZBML v Minister for Immigration [2004] FMCA 431
| Applicant: | SZCTT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ454 of 2004 |
| Delivered on: | 9 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms A Houlton Sparke Helmore |
INTERLOCUTORY ORDERS
The applicant’s motion filed on 30 June 2004 is upheld.
Orders 1and 3 made by Registrar Kavallaris on 24 June 2004 are set aside.
The respondent’s objection to competency filed on 8 March 2004 is upheld.
The application for judicial review filed on 23 February 2004 is dismissed as incompetent.
The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal made on 27 May 2002 and handed down on 19 June 2002 is to be accepted for filing without leave of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ454 of 2004
| SZCTT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency filed on 8 March 2004 on behalf of the respondent Minister concerning an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) that was filed on 23 February 2004. The judicial review application concerns a decision of the RRT made on 27 May 2002 and handed down on 19 June 2002. The notice of objection to competency relies upon s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”). That section requires that an application for judicial review be filed within 28 days of the date of notification of the relevant tribunal decision. Some 18 months have passed between the date of the handing down of the RRT decision and the application filed in this Court.
I note at this juncture that the judicial review application had been dismissed by a registrar on 24 June 2004. That decision was made because the applicant had failed to appear at a directions hearing on that day. I have today set aside that order and a costs order that went with it. I made that decision because, in my view, some confusion arose as a result of my intervention on 19 April 2004 to make directions for the conduct of the proceedings. As a result of my making those directions, the applicant was initially advised by letter that the directions hearing on 24 June 2004 had been vacated. Subsequently, he was advised by letter that his attendance on 24 June 2004 would in fact be required. The applicant denies receipt of either letter. Whether or not he received all or any of the letters sent to him, it was in my view unsafe in the circumstances for the registrar to dismiss the application for non appearance on 24 June 2004.
However, the notice of objection to competency filed by the Minister must be upheld. I have received into evidence this morning the court book prepared for earlier proceedings between the applicant and the Minister in the Federal Court in proceedings number N680 of 2002. I have also received into evidence an affidavit by Jennifer Bautista made on 19 March 2004 and filed on the same day.
In the case of SZBML v Minister for Immigration [2004] FMCA 431, I upheld a notice of objection to competency based upon s.477(1A) of the Migration Act where the issue of whether or not the relevant decision of the tribunal was a privative clause decision had already been determined by the Federal Court. This case is a stronger case than SZBML. In SZBML, the only relevant decision of the Federal Court was a decision of a single judge. In this case, the decision of the RRT has already been reviewed by Wilcox J on 12 September 2002 and by the Full Court of the Federal Court on 6 March 2003.
I am not strictly bound by the decision of Wilcox J but I consider that I am bound by the decision of the Full Court. The effect of both decisions is that the decision of the RRT has been found to be a privative clause decision. Significantly, the decision of the Full Court was made after the decision of the High Court in Plaintiff S157 of 2002v Commonwealth (2003) 195 ALR 24. The question on a judicial review application is clearly whether the relevant decision of the tribunal is vitiated by jurisdictional error. The effect of the decisions of the Federal Court is that it has been found that there was no jurisdictional error. On 6 February 2004 the applicant discontinued a special leave application in the High Court.
It follows that the question of whether or not the decision of the RRT is or is not a privative clause decision as being conclusively determined. In those circumstances, it is not open to me to make a different decision. Because the decision of the RRT has been found to be a privative clause decision, I have no jurisdiction. Section 477(1A) of the Migration Act operates to deprive the Court of jurisdiction because the application was not filed within time. In addition, s.474 of the Migration Act operates more generally because the decision of the RRT is a privative clause decision.
Accordingly, I must dismiss the application for judicial review and I do so. The orders that I will make are that the applicant's motion of which notice was given on 30 June 2004 is upheld. Orders 1 and 3 made by the registrar on 24 June 2004 are set aside. The respondent’s objection to competency filed on 8 March 2004 is also upheld. The application for judicial review filed on 23 February 2004 is dismissed as incompetent.
On the question of costs, Ms Houlton, on behalf of the Minister, sought an order that the applicant pay costs on an indemnity basis. The Minister's solicitor and client costs are approximately $3,100. An indemnity costs order might have been appropriate if I had heard the Minister's motion for summary dismissal of the application as an abuse of process. However, the application for judicial review has been dismissed summarily on an issue of jurisdiction. The applicant told me from the bar table earlier this morning that he was somewhat confused about advice he has received from time to time as to which court he should go to and when.
I am not persuaded that an indemnity costs order should be made in the circumstances of the dismissal of his judicial review application. However, costs should follow the event and I will make a costs order. Under the fixed event based scale of costs applying in this Court a proceeding disposed of summarily would normally attract a costs order of approximately $2,500. Consistently, with my usual practice in migration proceedings I will fix the amount of costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
Ms Houlton has also sought an order that no further application to review the decision of the RRT be accepted for filing except by leave of the Court. It is appropriate that I make such an order. Subject to any appeal from the orders of this Court to the Federal Court, this applicant has now exhausted all possibilities for judicial review of the decision of the RRT. The Minister should not have to deal with any further judicial review application in respect of the same RRT decision, save in exceptional circumstances. I will direct that no further application by this applicant to review the decision of the RRT made on 27 May 2002 and handed down on 19 June 2002 be accepted for filing in this Court except by leave of the Court.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 August 2004
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