SZDCN v Minister for Immigration
[2004] FMCA 1103
•21 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCN & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 1103 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.474, 477
NAGU v Minister for Immigration [2002] FMCA 154
NAGU of 2002 v Minister for Immigration [2002] FCA 1435
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
| First Applicant: Second Applicant | SZDCN SZDCO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG859 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 June 2004 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2004 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R White |
| Solicitors for the Respondent: | Sparke Helmore |
INTERLOCUTORY ORDERS
The application is summarily dismissed as incompetent.
No further application for judicial review of the decision of the Refugee Review Tribunal made on 2 April 2002 in relation to applicant SZDCN be accepted for filing in this Court, except by 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG859 of 2004
| SZDCN |
First Applicant
SZDCO
Second 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 and a notice of motion filed on 4 May and 11 May 2004 respectively. These are in relation to an application for judicial review filed on 23 March 2004 of a decision of the Refugee Review Tribunal (“the RRT”) made on 2 April 2002 confirming a decision not to grant the applicant a protection visa. This is not the first time that an application has been made to this Court to review the decision of the RRT. An earlier application instituted in the Federal Court and transferred to this Court was dealt with by me on 24 July 2002[1]. I dismissed the application with costs. My decision was made prior to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 concerning the operation of a privative clause in s.474 of the Migration Act 1958 (Cth) (“the Migration Act”).
[1] NAGU v Minister for Immigration [2002] FMCA 154
However, in paragraph 24 of my decision I said:
Whatever view one takes of the privative clause in the Migration Act no error of law has been disclosed which would support the granting of prerogative relief by me.
It follows from that conclusion that viewed in the light in the decision of the High Court in S157 of 2002 I found that the decision of the RRT is not infected by any jurisdictional error and is therefore a privative clause decision. My decision was affirmed on appeal by Conti J in the Federal Court on 12 November 2002[2]. In his reasons for judgment His Honour said:
I should add that I have read the judgment of the Federal Magistrate, his Honour Mr Driver which was delivered on
24 July 2002. I have been unable to discern any error in the reasons for judgment of his Honour and I further observe that the notice of appeal filed 13 August 2002 does not set out any ground of appeal, viable or otherwise.
[2] NAGU of 2002 v Minister for Immigration [2002] FCA 1435
I take this to be confirmation of my finding that the decision of the RRT is a privative clause decision. I consider that I am bound by the decision of the Federal Court on appeal from this Court.
I note from the affidavit of Jennifer Bautista made on 12 May 2004 that I have received as evidence in respect of the notice of motion and notice of objection to competency that two applications for special leave to the High Court were deemed abandoned. It is in my view unnecessary to deal with the notice of motion filed on 11 May 2004. In my view the present application for judicial review can and should be dealt with pursuant to the notice of objection to competency filed on 4 May 2004.
For the purposes of proceedings in this Court the decision of the RRT has been conclusively found to be a privative clause decision. It follows that the time limit on application for judicial review in s.477(1A) of the Migration Act applies. I have no power to enlarge that 28 day time limit. The present application was obviously filed well after the expiration of that time limit. The decision of the RRT was made on 11 March 2002 and the present application was filed on 23 March 2004. This Court has no jurisdiction to entertain an application for judicial review filed outside the prescribed time limit where the decision subject to review is a privative clause decision.
It follows that the objection to competency must be upheld and the application for judicial review must be summarily dismissed as incompetent. I will so order.
On the question of costs, Mr White submits that costs should be awarded on an indemnity basis. The applicant says that he will abide by any order of the Court. There may well have been a basis for an award of costs on an indemnity basis if I had dealt with the summary dismissal of the application as an abuse of process and as a vexatious application. I did not get to that point because I dealt with the matter on the preliminary issue of jurisdiction.
The applicant has certainly shown a determination to pursue all available avenues in seeking judicial review of the decision of the RRT. His first application has been found to lack any legal merit. His current application does not appear to raise anything new. Nevertheless, I am not persuaded that upon the basis on which the application has been disposed of by the Court costs should be awarded on an indemnity basis. On a party/party basis, on my view in this matter, an award of costs fixed in the sum of $3,000 would be adequate recompense for the Minister. I will order that the applicant pay the Minister's costs of and incidental to the application, which I fix in the sum of $3,000.
Notwithstanding the Minister's failure to secure an indemnity costs order, the Minister should not have to be troubled in this Court by a further application in respect of the same RRT decision unless the Court can be satisfied that there is a proper basis for the application. I will order that no further application for judicial review of the decision of the Refugee Review Tribunal, made on 2 April 2002, in relation to this applicant, be accepted for filing in this Court except by leave of the Court.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 April 2005
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