SZDKI & MINISTER FOR IMMIGRATION
[2006] FMCA 752
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDKI & MINISTER FOR IMMIGRATION | [2006] FMCA 752 |
| MIGRATION – Application for review of decision of Minister’s delegate – refusal of protection (Class XA) visa – decision of Refugee Review Tribunal previously upheld by the Federal Magistrates Court and the Federal Court – new application dismissed as incompetent. |
| Federal Magistrates Court Rules 2001 (Cth), r.10.01 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | SZDKI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG 1130 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with a Bengali interpreter |
| Advocate for the Respondent: | Ms Fitzgerald |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 13 April 2006 is incompetent and is dismissed.
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 |
SYG 1130 of 2006
| SZDKI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
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 13 April 2006 for judicial review of a decision of the delegate of the respondent. The Refugee Review Tribunal decision made on 5 April 2004, affirmed the decision of the delegate made on 22 August 2003, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks review of the decision of the delegate.
The applicant filed a supporting affidavit with his application of 13 April 2006. The application seeks:
a)An order that the respondent show cause why a remedy would not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in relation to the delegate’s decision, file CLF2003/35798, listing three grounds of review; and
b)An application for an extension of time under s.477 of the Act. The extension of time is required if the application is not made within 28 days of the actual, as opposed to deemed, notification of the decision.
In the application under the heading, “Other Court Proceedings” the applicant identified two previous Court proceedings. With the filing of the current application, all that the applicant has done is attempt to start the whole process again. This is nothing more than an attempt by the applicant to produce further delay by misusing the Court’s procedures, and is clearly an abuse of process.
Under r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth) the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth). This repealed the Court’s previous broader jurisdiction under s.483A of the Act, and introduced a new s.476. Under s.476(2)(a) of the Act, the Federal Magistrates Court has no jurisdiction in relation to a primary decision. Under s.476(4)(a) of the Act, a primary decision means a privative clause decision, or a purported privative clause decision that is reviewable under Part 7 of the Act.
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 previous determinations. This Court and the Federal Court have found no jurisdictional error in the Tribunal decision which is therefore a privative clause decision.
Consequently the application filed on 13 April 2006 must be dismissed on the ground that under the provisions of the Migration Litigation Reform Act it is incompetent.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 25 May 2006
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