SZDNT v Minister for Immigration
[2004] FMCA 779
•29 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNT v MINISTER FOR IMMIGRATION | [2004] FMCA 779 |
| MIGRATION – Application by respondent Minister for summary dismissal of substantive hearing – where Federal Court had already dismissed application – where applicant then filed application in the Federal Magistrates Court seeking review of the same Tribunal decision – where respondent filed a Notice of Objection to Competency – whether the Court has jurisdiction to review the RRT decision – whether the application should be dismissed as an abuse of process. |
Migration Act 1958 (Cth), s.477(1A)
Federal Magistrates Court Rules 2001
Applicant A100/2003 v MIMIA [2004] FCA 405
PlaintiffS157 of 2002 v Commonwealth (2003) 195 ALR 24
SZBJM v MIMIA [2003] FMCA 599
SZBML v MIMIA [2004] FMCA 431
| Applicant: | SZDNT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1374 of 2004 |
| Delivered on: | 29 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 October 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed as incompetent.
Further the application is dismissed as an abuse of process pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules.
The applicant pay the respondent's costs assessed in the sum of $1,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1374 of 2004
| SZDNT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings, who is the respondent to the notice of motion arrived in Australia on 20 October 2001. On 19 November 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs but a delegate of the Minister declined to grant him a visa on 29 April 2002. On 21 May 2002 the application sought review of that decision from the Refugee Review Tribunal. The Tribunal considered the applicant's case and on 24 December 2002 affirmed the decision not to grant the protection visa, handing down that decision on 28 January 2003.
On 21 February 2003 the applicant, who was represented at the time, filed an application for an order nisi seeking review of the decision of the Tribunal in the High Court of Australia. On 11 June 2003 Hayne J made orders transferred the matter to the Federal Court. On 5 April 2004 Finn J heard the application for the order nisi at which the applicant was represented. His Honour considered the matter and gave judgment on that day: Applicant A100/2003 v MIMIA [2004] FCA 405. At [5] – [6] of that judgment his Honour says:
“As noted at the outset, counsel for the application conceded: (1) that significant adverse credibility findings were made against the applicant and (2) that notwithstanding no further material was placed before the court he was nonetheless instructed to prosecute the appeal but (3) in the light of submissions made by the respondent the appeal should be dismissed. Needless to say I considered this to be an unsatisfactory state of affairs.
In the absence of evidence before me I am in no position to say whether or not there has been a denial of natural justice in this matter. I equally am not in a position to say whether the Tribunal's comments as to there being no evidence of purges and persecutions within the DMK at the time was simply a statement exposing deficiencies in the material put forward by the applicant. If it amounted to this and no more then no issues of unfairness would arise: cf WAGP of 2002 v MIMIA (2002) 124 FCR 276; as the case would not be one of there being "adverse information" which ought to be disclosed to the applicant; see NARV v MIMIA (2003) ALR 494 [15]. In this state of affairs I can only say that the applicant has failed to establish that there was a denial of procedural fairness and accordingly I dismiss the application with costs.”
Instead of appealing against the decision of Finn J the applicant proceeded to file proceedings in this court on 11 May 2004 seeking an order for review of the same decision of the Tribunal. The respondent Minister now seeks to have that application dismissed on two grounds. The first ground being that the application is incompetent by virtue of the provisions of subsection 477(1A) of the Migration Act. This section provides that the court has no jurisdiction to review any decision of the Refugee Review Tribunal where an application to the court has not been made within 28 days of the notification of the Tribunal decision.
The High Court has made it clear in PlaintiffS157 of 2002 v Commonwealth (2003) 195 ALR 24 that these provisions do not apply to a case where there is no decision of the Tribunal because the purported decision was infected with jurisdictional error. Ms Bryant, who appears on behalf of the Minister, asked me to find that the decision of Finn J is a finding binding upon me that there was no jurisdictional error in relation to these proceedings.
As an alternative to the disposal of this matter by way of reference to subsection 477(1A) the respondent argues that the proceedings are themselves an abuse of process and that her client is entitled to some finality in relation to these proceedings and not to be required to constantly come before courts to answer allegations relating to the same decision.
The applicant appeared before me unrepresented. He had filed a document entitled “Applicant's arguments for competency” which was described by the respondent in her written submissions in the following form:
“The document is formulaic in its terms and a familiar precedent to the court. It variously asserts without particulars that the Tribunal breached the rules of natural justice and multiple sections of the Act, the Tribunal's decision was based on a DFAT report, the Tribunal's member’s neutrality was suspect, the Tribunal ignored materials and evidence provided to it by the applicant and failed to follow proper procedures. No proper particulars have been provided.
The applicant also attempts to draw some analogy between this case and that considered in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. This ground of review cannot succeed unless the applicant establishes the necessary factual sub-stratum to enlighten it, which he has not: NADR v MIMIA [2002] FCAFC 293; VAS v MIMIA [2002] FCAC 351.”
I have been critical in the past of this type of notice of motion where an applicant has not had any hearing whatsoever of his claims. This is not the case today. This applicant was represented and had an opportunity to be heard before Finn J. As I said in SZBJM v MIMIA [2003] FMCA 599 at [4] it is to my mind an abuse of process to file repeated applications in different courts in respect of the same Tribunal decision. I am particularly concerned that in this case the applicant had open to him a path of appeals which he could have followed if he was unsatisfied with the decision of Finn J. That he did not follow that path tells against him in any discretionary consideration relating to the question of abuse of process.
I am aware that Driver FM takes the view that where a court has made a pronouncement concerning proceedings and dismissed them, it establishes for the purposes of a further hearing that the Tribunal did not fall into jurisdictional error and therefore subsection 477(1A) can apply. Although I can see that there may be arguments to the contrary such as that the true nature of the decision cannot be decided in advance of any application about it, I do not hold those views so strongly that I consider his Honour to be manifestly wrong. It is therefore appropriate that I follow his views which are set out in SZBML v MIMIA [2004] FMCA 431 at [3] – [5].
The applicant has been unable to say anything which would convince me that I should not make orders dismissing these proceedings. His arguments for competency were well described by Ms Bryant in her submissions. I make the following orders:
(1)The application is dismissed as incompetent.
(2)Further, the application is dismissed as an abuse of process pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules.
(3)The applicant pay the respondent's costs assessed in the sum of $1,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The respondent seeks that I make an order that no further application by the applicant to review the decision of the Tribunal handed down on 28 January 2003 be accepted for filing except with leave of the court. The validity of such orders is being currently considered by the Full Bench of the Federal Court and in those circumstances I do not believe it is appropriate such an order should be made.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 10 November 2004
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