SZDXC v Minister for Immigration
[2006] FMCA 1774
•20 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1774 |
| MIGRATION – Dismissal of substantive application for abuse of process. |
| Migration Act 1958, s.476(2)(a) Federal Magistrates Court Rules 2001 |
| Wu v Minister for Immigration (1994) 48 FCR 294 |
| Applicant: | SZDXC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2370 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 November 2006 |
| Date of last submission: | 20 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2006 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant pay the first respondent’s costs assessed in the sum of $1,750.00 within 28 days.
The court shall not accept for filing any further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 May 2004 or the decision of the delegate of the first respondent made on 24 October 2003 without prior leave of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2370 of 2006
| SZDXC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Minister respondent to the substantive application seeks summary dismissal of that application on the grounds that it relates to a decision of a delegate and is thus a matter excluded from the jurisdiction of this court pursuant to s.476(2)(a) of the Migration Act 1958. The Minister also suggests that the proceedings should be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that the application does not disclose a reasonable cause of action or the proceeding or claim for relief is an abuse of the process of the court. I am of the view that all three of these grounds are made out.
The decision of the delegate which is the subject matter of this case, was made on 24 October 2003. Although there may have been some irregularities in the way in which the decision was communicated to the applicant, and I make no finding on this, the applicant was able to seek review from the Refugee Review Tribunal by lodging an application on 12 November 2003. The Tribunal affirmed the delegate’s decision by way of grounds and reasons published on 13 May 2004.
The applicant then proceeded, as was his right, to challenge that finding in this court where his challenge was dismissed on 9 June 2005 by Federal Magistrate Smith. Again exercising his rights, the applicant appealed to the Federal Court where on 15 September his Honour Hely J dismissed his notice of appeal. The applicant sought special leave to appeal to the High Court but this was refused by their Honours Kirby and Callinan JJ on 3 August 2006. It was on 25 August 2006 that the applicant filed these proceedings seeking review of the delegate’s decision.
The delegate’s decision is a primary decision over which this court does not have jurisdiction by virtue of the provision which I have cited previously. In any event, there is sufficient authority such as Wu v Minister for Immigration (1994) 48 FCR 294 per Wilcox J at [298-299] that where a party has an opportunity for full-scale merits review of an administrative decision and exercises that right, the decision of the Tribunal effectively cures any alleged difficulty arising out of the manner in which the primary decision may have been made.
As the Tribunal’s decision has itself been the subject of appeals up to the highest court in the land, any further agitation of the grounds for refusing the applicant Australia’s protection would be an abuse of the process of this court.
I dismiss the substantive application. I order that the applicant pay the respondent’s costs which I assess in the sum of $1,750.00 to be paid within 28 days. I also order that the court not accept for filing any further application by the applicant to review the decision of the Refugee Review Tribunal made on 13 May 2004 or the decision of the delegate of the first respondent made on 24 October 2003 without prior leave of the court.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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