SZCVD v Minister for Immigration

[2007] FMCA 1651

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1651

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) Visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as incompetent and an abuse of process.

Federal Magistrates Court Rules 2001 (Cth), rr.10.01, 13.10, 44.06, 44.12
Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.476, 477, 483A, 486D
Migration Litigation Reform Act2005 (Cth), Item 42, Part 2, Schedule 1

SZCVD v Minister for Immigration & Anor [2006] FMCA 665
SZCVD v Minister for Immigration & Multicultural Affairs [2006] FCA 1456
SZCVD v Minister for Immigration & Multicultural Affairs & Anor [2007] HCATrans 355

Applicant: SZCVD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2627 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 18 September 2007

Delivered at: Sydney

Delivered on: 18 September 2007

REPRESENTATION

Advocate for the applicant: The applicant appeared in person with the aid of a Bengali interpreter

Solicitor for the respondents: Ms L Buchanan of Australian Government Solicitor

ORDERS

1. The application filed on 24 August 2007 is dismissed as incompetent and as an abuse of process.

2. The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $600.    

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2627 of 2007

SZCVD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 24 August 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 14 January 2004 and handed down on

   
   

   4 February 2004, affirming a decision of a delegate of the first respondent, refusing to grant the applicant a Protection (Class XA) visa.  The applicant seeks relief against the decision of the Tribunal, reference N03/47313.The applicant filed an affidavit sworn on

   
   

   18 August 2007 in support of his application, which attaches a copy of the Tribunal decision. 

2. The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The application sets out five grounds of review:

   1.The Tribunal erred in finding that my fear of persecution for my political belief is not well founded and refused my application.

   2.The Tribunal did not give me adequate opportunity to respond to the independent evidence in the possession of the Tribunal which otherwise suggested to the Tribunal that I am not a refugee within the meaning of the UN Refugee Convention.

   3.The Tribunal did not give me any opportunity to give further submission of the adverse information the Tribunal considered to refuse my case and made an error of jurisdiction.

   4.The Tribunal erred in finding that I am not a credible witness and refused my case.  The Tribunal erred in affirming the decision of the delegate of the Minister without considering the risk of harm I shall experience on my return back to India.

   5.The Tribunal made an error of jurisdiction not considering the evidences I have provided for my claimed persecution and the reasons in the submissions prior to the decision.  The Tribunal failed to consider that I have no well founded fear of persecution for a convention reason in my previous country of residence, India.

   The application has not raised an arguable case for the relief claimed under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). The present proceedings would be prevented by either issue estoppel and/or Anshun estoppel on the basis of the applicant’s previous proceedings listed below.  There were numerous opportunities to raise all the grounds of judicial review during the earlier hearings.

3. The Court lacks jurisdiction to hear the application in accordance with r.44.06(2)(a) of the Rules for the following reasons:

   a)The application is out of time.

   i)The decision of the Tribunal was actually notified to the applicant on or about 4 February 2004.

   ii)Pursuant to Item 42, Part 2, Schedule 1 of the Migration Litigation Reform Act 2005 (Cth) and for the purposes of s.477 of the Act, the applicant is taken to have been actually notified of the Tribunal decision on 1 December 2005.

   iii)

   Contrary to the requirements of s.477(1) of the Act, the application to this Court was not made within 28 days of

   
   

   1 December 2005.

   b)The applicant did not seek an extension of time pursuant to s.477(2) of the Act.

4. There have been other judicial review proceedings in relation to the Tribunal decision in accordance with r.44.06(2)(c) of the Rules for the following reasons:

   a)On 27 February 2004, an application for judicial review was filed in applicant’s name in the Federal Magistrates Court, proceedings number SYG513 of 2004.  The applicant was given the pseudonym “SZCVD”.  That application was dismissed by Driver FM on 4 May 2006: SZCVD v Minister for Immigration & Anor [2006] FMCA 665.

   b)On 22 May 2006, an appeal from the judgment of Driver FM was filed in the applicant’s name in the Federal Court of Australia, proceedings number NSD988 of 2006.  That appeal was dismissed by Conti J on 8 November 2006: SZCVD v Minister for Immigration & Multicultural Affairs [2006] FCA 1456.

   c)On 30 November 2006, an application for special leave to appeal the decision of Conti J was filed in the High Court of Australia, proceedings number S421 of 2006.  That application was dismissed by Kirby and Callinan JJ on 1 August 2007: SZCVD v Minister for Immigration & Multicultural Affairs & Anor [2007] HCATrans 355.

   d)Justice Kirby said in that matter:

   We are unconvinced that any error has been shown in the approach to judicial review by the Federal Court or the Federal Magistrates Court or in the conclusions reached in those courts. An appeal to this Court would not enjoy such prospects of success as to warrant a grant of special leave. The complaint of the applicant appears to boil down to one of an alleged failure on the part of the Tribunal to disclose its reasoning process. That is not a course that was required, certainly in the circumstances of this case. Even if there were some imperfections in the references to the evidence before the Tribunal, they were of the most slight and immaterial kind. In the circumstances shown by the record, the applicant’s case is doomed to failure. The application must therefore be refused.

5. I believe that all the applicant has done in this casse is file another application in an attempt to start the whole circular process again.  The applicant has not attempted to raise any new ground of review not put to the Courts previously.  This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s processes.  It is clearly an abuse of process.

6. The application has been filed since the introduction of the Migration Litigation Reform Act 2005, which has repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments introduced r.44.11(a) to the Rules, where the Court may dismiss an application on an interlocutory basis with specific reference to r.44.12.

7. I note that this power should be exercised cautiously and only in appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the Courts as referred to at [4] above. The Federal Magistrates Court, the Federal Court and the High Court have determined that there is no jurisdictional error in the Tribunal decision. Although the Courts have not expressly stated it, the Tribunal decision is a privative clause decision.

8. The other significant problem facing the applicant relates to time limits. As these proceedings were filed under the Act as altered by the Migration Litigation Reform Act 2005, this places the application within the operations of the amended s.476. This means that the time limit in s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interests of the administration of justice to do so.”

9. The application does not seek an extension of time. I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from an extension of the time limit. The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act 2005 which commenced on 1 December 2005. This application was not filed until 24 August 2007 and is clearly incompetent.

10. I note that no affidavit explaining the delay has been filed.

11. Consequently, the application filed on 24 August 2007 must be dismissed on the ground that it is an abuse of process. Under the provisions of the Migration Litigation Reform Act 2005 it is also incompetent.

12. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $600.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  2 October 2007