SZEFA v Minister for Immigration
[2005] FMCA 278
•9 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFA v MINISTER FOR IMMIGRATION | [2005] FMCA 278 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of Bangladesh – no appearance by applicant – hearing of interlocutory application proceeded – Anshun estoppel – previous litigation – jurisdiction of the Court – interlocutory application – incompetency – out of time – application summarily dismissed. Migration Act 1958 (Cth) Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | SZEFA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2573 of 2004 |
| Delivered on: | 9 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | No appearance |
| Advocate for the Respondent: | S Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be summarily dismissed as incompetent.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2573 of 2005
| SZEFA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 21 June 2002 and handed down on
16 July 2002 which affirmed a decision of the delegate of the Minister dated 17 January 2000 not to grant the applicant a protection visa.
In this matter the respondent Minister has sought by interlocutory application to have the primary application dismissed on a number of grounds. These grounds include res judicata, Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), abuse of process, no reasonable basis for application and the failure of the applicant in the principal matter to comply with the orders of the Court to file an amended application with full particulars for each ground relied on.
At the commencement of the proceedings I raised with the Minister’s representative the question of the competence of the Court to hear the application for review in view of the history of previous litigation relating to the decision of the Tribunal.
In brief, the applicant in the principal proceedings sought review of the Tribunal’s decision before Madgwick J in the Federal Court which application was dismissed on 26 November 2002 (NARO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1465). She then filed a notice of appeal in December 2002 which was dismissed by the Full Court of the Federal Court on 21 May 2003 (Applicant NARO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 101).
In the decision of the Full Court their Honours said:
In our view there is no substance in the appeal. In essence, the appellant seeks to argue matters of fact going to the merits of her claims based on the present political situation in Bangladesh. Of course, such matters cannot be the subject of review in this Court whether at first instance or on appeal. Nothing raised by the appellant or disclosed by the papers suggests that the Tribunal may have fallen into any jurisdictional error of the type referred to in Plaintiff S157/ 2002
In my view, the Full Court having found the Tribunal had not fallen in a jurisdictional error, the Tribunal’s decision is a privative clause decision under the Migration Act 1958 (Cth) (the Act). That raises the question of the competency of this Court to hear the principal application in view of the time limits set out in s.477 of the Act. Section 477 (1A) requires that an application to this Court must be made within 28 days of notification of the decision. In this matter, the application was made some two years after the handing down of the Tribunal decision.
Having regard to the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 and of Bennett J on appeal in the same case (SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195), I am of the view that this Court is not competent to hear the principal application. The time limit in s.477 of the Act applies and there is no basis on which I can enlarge the time for application to overcome that incompetence. I therefore dismiss the principal application before the Court as incompetent.
As I said to Ms Burnett for the respondent it seems to me the jurisdiction and the competency of the Court to hear the matter is a question which must be considered before the ones that she has raised in the Minister’s application to the Court today. I have done so and reached the conclusions above. Therefore there is no need to proceed further with the Minister’s application as the principal application has been summarily dismissed on the basis of lack of competency of this Court to hear the matter.
I certify that the preceding eight paragraphs (8) are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 23 March 2005
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