SZFMH v Minister for Immigration

[2006] FMCA 829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 829

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) Visa – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – new application dismissed as incompetent and an abuse of process.

Federal Magistrates Court Rules 2001 (Cth), rr.10.01, 13.10, 44.06, 44.12
Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.476, 477, 483A, 486D
Migration Litigation Reform Act2005 (Cth), part 2, schedule 1, item 42

Lie v Refugee Review Tribunal [2002] HCA 30

Applicant: SZFMH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG176 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 8 June 2006

Delivered at: Sydney

Delivered on: 8 June 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the aid of a Tamil interpreter

Advocate for the Respondents: Ms S Hanstein

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 18 January 2006 is dismissed as incompetent and as an abuse of process.

2. The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $2,500.    

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG176 of 2006

SZFMH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 18 January 2006 for juridical review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 July 1999 and handed down on

   
   

   23 July 1999, affirming a decision of a delegate of the first respondent made on 3 December 1997, refusing to grant the applicant a protection visa.  The applicant seeks relief against the decision of the Tribunal, reference N97/20875.The applicant filed an affidavit sworn on

   
   

   18 January 2006 in support of his application. 

2. The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds of review:

   1.That the Refugee Tribunal has not taken into account all the relevant information when makings its decision, and in doing, so has erred in law.

   2.That under Section 65(1) of the Act and the Refugees Convention and Refuges Protocal the Tribunal did not detect the error on the part of DIMIA and in doing so has not interrogated the Article 1A(2) of the Convention.

   3.The applicant is well within his rights and is being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence to it.  The department affirmed the decision of the Department of Immigration, not grant protection visa.

   The application has not raised an arguable case for the relief claimed in r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). The present proceedings would be prevented by either issue estoppel and/or Anshun estoppel on the basis of the previous proceedings, which are listed below.  There have been a number of previous opportunities to raise all the grounds of judicial review during those earlier hearings.

3. The Court lacks jurisdiction to hear the application in accordance with r.44.06(2)(a) of the Rules for the following reasons:

   a)The application is out of time.

   i)The decision of the Tribunal was actually notified to the applicant on or about 23 July 1999.

   ii)Pursuant to Part 2, item 42 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth), for the purposes of s.477 of the Act, the applicant is taken to have been actually notified of the decision on 1 December 2005.

   iii)

   Contrary to the requirements of s.477(1) of the Act, the application to this Court was not made within 28 days of

   
   

   1 December 2005.

   b)The applicant did not seek an extension of time pursuant to s.477(2) of the Act.

4. There have been other judicial review proceedings in relation to the decision in accordance with r.44.06(2)(c) of the Rules for the following reasons:

   a)On 13 August 1999, the applicant, as a represented party, joined proceedings S89 of 1999 (Lie v Refugee Review Tribunal [2002] HCA 30).

   b)On 19 June 2003, pursuant to orders made by

   c)

   Her Honour Gaudron J of the High Court of Australia on

   
   

   25 November 2002, the applicant commenced proceedings in the High Court in his own name, seeking orders nisi (S1863 of 2003).  Upon the commencement of those proceedings, pursuant to the orders of Gaudron J:

   i)The applicant ceased to be a member of the Liev Refugee Review Tribunal representative proceeding; and

   ii)His individual application for orders nisi was remitted instanter to the Federal Court of Australia, where it was given proceedings N2101 of 2003.

   d)The applicant for draft order nisi in proceedings N2101 of 2003 was refused by His Honour Emmett J of the Federal Court of Australia on 20 February 2004.

   e)On 13 January 2005, the applicant filed an application in the Federal Magistrates Court pursuant to s.483A of the Act and s.78B of the Judiciary Act 1903 in this Court.  That proceeding was given the Court number SYG108 of 2005.  That application was dismissed, by consent, on 19 September 2005.

5. The applicant has not compiled with s.486D(1) of the Act by failing to disclose prior judicial review as detailed above, in respect of the decision under review pursuant to r.44.06(2)(d) of the Rules.

6. I believe that all the applicant has done is to file another application in an attempt to start the whole circular process again.  The applicant has not attempted to raise any new ground of review that has not been put before the courts on previous occasions.  This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s processes.  It is clearly an abuse of process.

7. The application has been filed since the introduction of the Migration Litigation Reform Act 2005, which has repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments to the Act introduced r.44.11(a) to the Rules, where the Court may dismiss an application on an interlocutory basis with specific reference to r.44.12, which states:

   (1) At a hearing of an application for an order to show cause, the Court may:

   (a)   if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

   (b)     …

   (c) …

   (2)To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.

8. I note that this power should be exercised cautiously and only in the appropriate circumstances. In this case, there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the courts as referred to above at [4]. The Federal Court has determined that there is no jurisdictional error in the Tribunal decision. Although the Court has not expressly made the statement, that decision is a privative clause.

9. The other significant problem facing the applicant is in relation to the time limit. As these proceedings were filed under the Act as altered by the Migration Litigation Reform Act 2005, this places the application within the operations of amended s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interest of the administration of justice to do so.”

10. The application does not seek an extension of time.  I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from the transitional time limit extension.  The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act 2005, which commenced on 1 December 2005.  This application was not filed until 18 January 2006 and is clearly incompetent.

11. I note that no affidavit explaining the delay has been filed.

12. Consequently, the application filed on 18 January 2006 must be dismissed on the ground that it is an abuse of process.  Under the provisions of Migration Litigation Reform Act 2005 it is also incompetent.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  23 June 2006