SZESD v Minister for Immigration
[2006] FMCA 459
•28 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 459 |
| MIGRATION – RRT decision – refusal to accept jurisdiction on second application to Tribunal – previous judicial review of first Tribunal decision – application dismissed for no arguable case. |
Federal Magistrates Court Rules 2001, rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.412, 476
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581
SZESD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1406
SZESD v Minister for Immigration [2005] FMCA 883
| Applicant: | SZESD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG249 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 28 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $1,500.
Direct that no further application for review of any decision of the Refugee Review Tribunal relating to the decision of the delegate of the first respondent dated 6 June 2002 or for review of that decision of the delegate or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG249 of 2006
| SZESD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) filed on 24 January 2006, which seeks an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 January 2006.
The application had a first court date on 1 March 2006. On that occasion the applicant appeared, and at his request the matter was moved from the docket of Lloyd‑Jones FM into my docket. The applicant appeared before me on that day, and I set the matter down for a hearing today under r.44.12 of the Federal Magistrates Court Rules 2001. The applicant was warned that his application might be dismissed if the Court was not satisfied that it raised an arguable case for the relief claimed.
The applicant has been served with a response and affidavit filed by the Minister, giving notice of a previous history of litigation upon which the Minister relies to show the hopelessness of the present application. The applicant has appeared today, but had no submissions to put to me to show merit in his application.
The decision of the Tribunal which is the subject matter of the application, is a decision responding to an application for review filed with the Tribunal on 7 October 2005. It sought review of “a decision to refuse the grant of a protection visa”. In its decision, the Tribunal identified as the only such decision of a delegate, a decision made by a delegate on 6 June 2002 responding to an application for a protection visa lodged on 29 October 2001. The Tribunal noted that the applicant had previously sought review of that delegate’s decision, and that the Tribunal had previously handed down a decision affirming the delegate’s decision on 18 December 2002.
The Tribunal said that it lacked jurisdiction to respond to the second application to review on two grounds: first, that the application was long outside the mandatory time limit applicable under s.412 of the Migration Act; and secondly, that the previous decision of the Tribunal rendered it in effect functus officio to perform any further review of the delegate’s decision. The Tribunal said: “there is no suggestion that the [first] Tribunal’s decision involved jurisdictional error”.
In my opinion there is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa. Most significantly, the first Tribunal’s decision has already been judicially determined not to have involved jurisdictional error. It is therefore not open to the applicant in the present proceeding to contend that the first Tribunal’s decision can be ignored, nor that his original application for review is still outstanding.
The judicial determination of that issue was given by Lloyd‑Jones FM in SZESD v Minister for Immigration [2005] FMCA 883. At [36] his Honour upheld a notice of objection to competency which relied on the proposition that the Tribunal’s decision was a “privative clause decision” because it was not affected by jurisdictional error.
His Honour’s judgment was upheld on appeal by Jacobson J in SZESD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1406. On both occasions the applicant was represented by a solicitor.
For the above reasons, I am not satisfied that the application to the Court has raised an arguable case for the relief claimed, and I therefore dismiss the application under r.44.12(1)(a).
The Minister has applied to the Court for an order which might prevent the applicant from vexing the Minister and the Tribunal with further applications for judicial review relating to the processing and decision of his protection visa application. The history which I have narrated above suggests the suitability of such an order. Further reasons arise from previous litigation of the applicant in the High Court and in the Federal Court in 2003, which is described in the affidavit filed by the Minister. The total picture of the applicant’s litigation reveals that he has not understood nor accepted the need for finality in his litigation.
I therefore propose to exercise the power which has been upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 at [29], to give a direction to the Registry that no further application for judicial review in relation to the matter should be received without prior leave of the Court.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 April 2006
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