SZDCN v Minister for Immigration - [2004] FMCA 1103

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 1103
Decision Date: 21 June 2004

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the applicants, SZDCN and SZDCO, challenged the Minister for Immigration and Multicultural and Indigenous Affairs regarding the refusal of their protection visa applications. This legal action sought judicial review of the Refugee Review Tribunal's (RRT) decision, dated 2 April 2002, which upheld the Minister's decision not to grant them a protection visa. The applicants contested the RRT's decision, arguing it contained errors that warranted judicial intervention.

The primary legal issue before the court was whether the applicants' application for judicial review was competent. Specifically, the court had to determine if the application was made within the statutory time limit, given that the RRT's decision was a privative clause decision. Under the Migration Act 1958 (Cth), judicial review of privative clause decisions must be sought within 28 days. The applicants' application was lodged more than two years after the RRT's decision, raising questions about the court's jurisdiction to hear the case.

The court held that the applicants' application for judicial review was incompetent because it was filed beyond the statutory time limit for privative clause decisions. The Federal Magistrates Court determined that it lacked jurisdiction to hear the application once the time limit had expired. Furthermore, the court found that the applicants' previous application for judicial review had already been dismissed for lack of merit, and the current application did not introduce new arguments. The court also noted that the applicants' persistence in pursuing judicial review, despite the lack of legal basis, did not warrant an award of indemnity costs. Instead, the court ordered the applicants to pay the Minister's costs of $3,000. Lastly, the court prohibited further applications regarding the same RRT decision unless leave of the court was granted.

The court's orders included the dismissal of the application as incompetent, a prohibition on further applications regarding the same RRT decision without leave, and an order for the applicants to pay the Minister's costs of $3,000. The court's decision underscored the strict compliance with statutory time limits for judicial review in cases involving privative clause decisions under the Migration Act.

Orders