SZFYI v Minister for Immigration
[2007] FMCA 861
•25 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 861 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. MIGRATION – Proceedings out of time – Tribunal functus officio. |
| Migration Act 1958, ss.412, 477 Migration Regulations 1994, reg.4.31 Federal Magistrates Court Rules 2001, r.4.01, 13.03A |
| Applicant: | SZFYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 877 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 May 2007 |
| Date of Last Submission: | 25 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2007 |
REPRESENTATION
There was no appearance by the applicant.
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Pursuant to r.13.03A(c), the application will be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,500.
The Refugee Review Tribunal be joined as the second respondent to the application.
A notice of appearance be filed by the second respondent within seven days
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 877 of 2007
| SZFYI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings have been commenced by an application dated 15 March 2007 and filed on that day. The application is expressed to be one for interim orders and the order sought is described on the second page of the application in the following terms:
I seek leave to file the attached application.
The only application before the Court is the first page of that document where the box "Interim Orders" is ticked.
The matter was called outside the Court shortly after 10.15, and there was no appearance by the applicant. The applicant has sent a letter to the Court in which he says this:
I am suffering from severe cough and soar [sic] throat. So I am unable to attend the hearing which will be held today (25-05-07) at 10.15 am.
I humbly request you to accept my request.
That letter would appear to be a request for an adjournment on the basis of ill-health.
The Minister has sought dismissal of the proceedings for non‑attendance, pursuant to r.13.03A of the rules of Court. It is also apparent that the initiating process is not in compliance with the rules of Court and, in particular, with r.4.01(3).
I note that no medical evidence has been proffered by the applicant in support of his claimed inability to attend Court today and I am not of the view that a severe cough and sore throat are the sorts of conditions which would prevent an applicant from attending Court to make his application. In the circumstances, I am satisfied that it is appropriate to dismiss the application, pursuant to 13.03A, but, in doing so, it is appropriate to note the following facts.
First, as already observed, the application is not an application as contemplated by the Rules, which provide as follows:
4.01(3)A person may not file an application for an interim or procedural order unless:
(a) an application for a final order has been made in the proceeding; or
(b) the application includes an application for a final order.
The document filed by the applicant in these proceedings does neither of those things.
Secondly, the applicant has a considerable litigation history, as deposed to by Ishan Fuad Muthalib, in his affidavit sworn 18 April 2007. Mr Muthalib is a solicitor in the employ of the solicitors for the Minister. Mr Muthalib's affidavit indicates that this is the fourth occasion on which the applicant has sought review in this Court of a migration decision. He has had three appeals from this Court to the Federal Court and has, on two occasions, sought special leave to appeal to the High Court. All of those proceedings have been unsuccessful.
Therefore, to the extent that the applicant seeks to reagitate in these proceedings the original decision of the Minister's delegate made on 29 December 2001 or the decision of the Refugee Review Tribunal made on 11 September 2002, it is clear not only that the matter has previously been determined against the applicant on three occasions by this Court, on three occasions by the Federal Court and twice on the special leave applications to the High Court but any such application on this occasion is well out of time, by virtue of s.477 of the Migration Act, taking into account the provisions of the Migration Litigation Reform Act 2005 and the fact that any proceedings ought to have been commenced within 84 days of 1 December 2005.
Further, Mr Cramer, on behalf of the Minister, advises that the Minister had been operating in these proceedings on the assumption that the applicant had been seeking review of the decision of the Tribunal signed on 15 February 2007, a copy of which decision record is an exhibit in these proceedings. However, it is not clear from the applicant's application that this is so, although, in his affidavit sworn 14 March 2007, the applicant does make reference to "the purported decision of the Refugee Review Tribunal", without specifying which decision he means.
Were the applicant to be seeking review of the decision of the Tribunal signed on 15 February 2007, it is also apparent that there would be no jurisdictional error demonstrated by that decision, which was to the effect that the application to the Tribunal was out of time, in that it was an application for the review of the delegate's original decision. Section 412 of the Migration Act and reg.4.31 of the Migration Regulations 1994 make it clear that the Tribunal did not err on that occasion in concluding that it did not have jurisdiction.
For all these reasons, it is apparent that the application to the Court has no prospects of success.
Consequently, the applicant failing to attend today, pursuant to r.13.03A(c) the application will be dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 June 2007
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