SZFXY, SZFYM v Minister for Immigration
[2005] FMCA 818
•11 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXY, SZFYM & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 818 |
| MIGRATION – Review of decision of Refugee Review Tribunal – matters linked – husband and son – wife – decision in Federal Magistrates Court – decision in Federal Court – special leave to appeal to High Court – interlocutory application – application out of time – privative clause decisions – incompetent – applications dismissed. Migration Act 1958 (Cth), ss.474, 477 NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCAtrans 83 (3 March 2005) |
| Applicant: | SZFXY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG701 of 2005 |
AND
| Applicants: | SZFYM & SZFYN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG735 of 2005 |
| Delivered on: | 11 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 May 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicants: | In person |
| Advocate for the Respondent: | Ms Asimus |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
SZFXY v Minister for Immigration:
(1)The application be summarily dismissed as incompetent
(2)The applicant may not institute any further proceedings in this Court seeking review of the decision made by the Tribunal on 18 June 2002 handed down on 10 July 2002 without first obtaining the leave of this Court.
(3)The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,200.
SZFYM & Anor v Minister for Immigration:
(1)The application be summarily dismissed as incompetent
(2)The applicants may not institute any further proceedings in this Court seeking review of the decisions made by the Tribunal on 18 June 2002 handed down on 10 July 2002 without first obtaining the leave of this Court.
(3)The first applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG701 of 2005
| SZFXY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
SYG735 of 2005
| SZFYM & ANOR |
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 applications made by a husband and wife and child who I shall refer to as “the applicants”, although there are separate applications. The first application involves the wife and the second the husband and the son.
The wife’s application was filed in this Court on 21 March 2005 and the husband and son’s on 23 March 2005. They both seek review of separate decisions of the Refugee Review Tribunal (the Tribunal) made on 18 June 2002 and handed down on 16 July 2002.
At the hearing the respondent applied for the applications to this Court be dismissed as incompetent because they were filed outside the 28 day limit prescribed by the Migration Act 1958 (Cth) (the Act). The respondent also filed notices of motion, relating to each matter, seeking the dismissal of the applications on various grounds.
At the commencement of the hearing before me the applicants sought an adjournment of the proceedings to allow them to engage a barrister. I note that the current hearing (11 May 2005) had been entered as listed on 7 April 2005. The applicants filed their applications to this Court on 21 and 23 March 2005 respectively. I also note that the applicants have had legal representation including the assistance of counsel on various occasions. They are clearly accustomed to the process of obtaining legal representation and have had ample time to do so. For these reasons I refused their application for an adjournment.
As a final procedural matter, at the request of Ms Asimus for the Minister, I appointed the two parents as litigation guardians for the infant son pursuant to Division 11.2 of the Federal Magistrate Court Rules 2001.
Litigation history
This matter has a long and tortuous history of litigation which commenced with the arrival of the applicant husband in Australia on 7 December 1996. I will not detail all the steps in this history other than to note that there was initially an application for a protection visa by the husband in December 1996 which went to the Tribunal and then to the Federal Court. The applicant husband has also made a number of requests to have the Minister exercise his discretion to grant him a visa or to allow him to make a further application for a visa, under ss.417 and 48B respectively of the Act.
The applicant wife arrived in Australia in November 1999. The son was born in December 2000. The applicant wife lodged her own protection visa claim in December 1999, and in 2001 a second protection visa claim was considered for the applicant father whose application also included the son. These applications were both refused and the applicants applied to the Tribunal for review.
Eventually the Tribunal made its decisions on 18 June 2002 and handed them down on 10 July 2002 affirming the decisions of the delegates of the Minister not to grant protection visas to the applicants. As I have noted there were two decisions, one for the wife and one for the husband, the latter including the son.
On 7 August 2002 the applicants applied to the Federal Court with identical applications for judicial review of the Tribunal’s decisions. These applications were transferred to the Federal Magistrates Court on 9 September 2002 by order of Jacobson and Beaumont JJ.
On 6 December 2002 Driver FM dismissed both applications after having heard from the applicants who were represented by counsel (see NAQY & NAQZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 355).
On 24 December 2002 both applicants lodged separate but identical Notices of Appeal in the Federal Court. Justice Hill heard these matters on 8 May 2003 and on 27 August 2003 he dismissed both appeals with costs (see NAQZ v Minister for Immigration & Multicultural & Indigenous Affairs; NAQY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898). Again the applicants were represented by counsel.
On 23 September 2003 the applicants applied for special leave to appeal in the High Court. On 28 April 2004 those applications were deemed abandoned due to the applicants’ failure to comply with the relevant provisions of the High Court Rules. On 14 April 2004 the applicants filed a second application in each case for special leave to appeal in the High Court and on 18 May 2004 they filed a draft Notice of Appeal. On 3 March 2005 McHugh and Heydon JJ dismissed both special leave applications with costs.
On 21 and 23 March 2005 they filed new applications in this Court.
Are these applications competent?
The first question that this Court has to consider is whether it has jurisdiction to deal with these applications. I propose to deal with this first before considering any other grounds for dismissal and in particular the Notices of Motion filed by the respondent.
Section 477 of the Act sets out the time limits for applications for judicial review. Relevantly ss.477(1A) and (2) provide:
(1A) An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
(2)The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.
The Court only has jurisdiction if an application for review of a decision by the Tribunal is filed within 28 days after the applicant is notified of the decision. The Court has no power to extend that period beyond 28 days. However this limitation is restricted to privative clause decisions as defined in s.474 of the Act.
The respondent submits that applicants’ Tribunal decisions have been found not to be affected by jurisdictional error in the previous judicial review proceedings in the Federal Magistrates Court, the Federal Court and the High Court. The respondent says the decisions are therefore privative clause decisions.
The respondent submits that because the present applications were lodged in the Court approximately two years and eight months outside the time limit of 28 days, as permitted by s.474(1A) of the Act, the applications are incompetent. The respondent referred me to the Federal Court decision in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195.
At the hearing the applicants submitted to me that after the High Court dismissed their first applications they were told that because of the High Court decision in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 they could re-litigate the matter in this Court. They said that they wanted another chance. However, in essence the applicant’s submissions merely repeat some of the factual issues concerning their refugee claims and the consideration of these claims by the Tribunal.
The applicants have both provided identical written arguments which purport to address the respondent’s Notice of Motion. In fact none of the material in the applicants’ written submissions is relevant to the matters before this Court.
I note that the decision of Driver FM was made on 6 December 2002. It therefore predates the High Court decision in Plaintiff S157/2002. In the Federal Court the applicants’ Notice of Appeal raised a number of grounds which were considered by Hill J after the High Court’s decision in Plaintiff S157/2002. Nevertheless Hill J found no jurisdictional error although he did not use that specific phrase.
In the High Court decision on the applicants’ case McHugh J gave the reasons of the Court (NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCAtrans 83 (3 March 2005)) and said:
The Federal Magistrates Court refused an application for judicial review: it found no jurisdictional error and no procedural unfairness.
Hill J, in the Federal Court, dismissed an appeal. He held that the principle in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 did not apply because the evidence did not support its application. He also held that no procedural unfairness or jurisdictional error was established.
An application for special leave to appeal was deemed abandoned on 29 April 2004.
The present application was filed about eight months late. The application relies on the Muin principle. That must fail for the reasons given by Hill J. No other ground of jurisdictional error is made out.
This Court is strictly bound by the decisions both of the Federal Court and the High Court. The High Court’s decision means that the Tribunal’s decisions were privative clause decisions. This is because the Courts found no jurisdictional error in those decisions. The time limit on applications to this Court set out in s.477 of the Act therefore applies. The present applications were not made within the time limit and are therefore incompetent. There is no basis in law on which I can extend the time for the applications to overcome that incompetence.
Conclusions
As I have already indicated this matter has had a long litigation history. The Tribunal decisions have been considered by the Federal Magistrates Court, the Federal Court and the High Court. In fact, there were two applications to the High Court for Special Leave. In both the Federal Magistrates Court and the Federal Court the applicants were represented by counsel and as I have indicated above none of these Courts have found any jurisdictional error in the decisions.
I dismiss both applications as incompetent.
In my view, it is time this litigation came to an end. It has come back to this Court with new applications filed in March 2005. I can see no good purpose in allowing the applicants to commence further proceedings in this Court without first seeking leave.
In the circumstances I think it is appropriate that a costs order be made in each case. In matter SZFYM & Anor the reason for the costs order being only against the first applicant is because the second applicant is a minor.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Z Chiam
Date: 11 August 2005
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