SZFYI v Minister for Immigration

[2006] FMCA 232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYI v MINISTER FOR IMMIGRATION [2006] FMCA 232

MIGRATION – Application seeking judicial review of delegate’s decision – reviewable by Refugee Review Tribunal – application dismissed as incompetent.

Federal Magistrates Court Rule 44.05
Migration Act 1958 (Cth), ss.5E, 474(1), 476, 476(2)(a)

Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.28, 41

NADD v Minister for Immigration [2003] FMCA 203
NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1438
NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 072
SZFYI v Minister for Immigration [2005] FMCA 1186
SZFYI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1654

Applicant: SZFYI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 3562 of 2005

Judgment of: Smith FM

Hearing date: 8 February 2006

Delivered at: Sydney

Delivered on: 8 February 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr Muthalib

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed as incompetent.

2. The applicant must pay the respondent’s costs in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3562 of 2005

SZFYI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The application in this matter was filed on 5 December 2005.  It was therefore subject to amendments of the Migration Act 1958 (Cth) made by the Migration Litigation Reform Act 2005 (Cth) (see Sch.1 cl.41). The Court's jurisdiction under s.483A was repealed (see Sch.1 cl.28), and the Court now only has jurisdiction under s.476 of the Migration Act as amended.  This provides:

   476 Jurisdiction of the Federal Magistrates Court

   (1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

   (2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

   (a)a primary decision;

   (3)…

   (4)In this section:

   primary decision means a privative clause decision or purported privative clause decision:

   (a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

   (b)that would have been so reviewable if an application for such review had been made within a specified period.

1. A “privative clause decision” is defined in s.474(1), and a “purported privative clause decision” is defined in s.5E. It is unnecessary for me to refer to those definitions, except to note that they refer to a decision made, or purported to be made, under the Migration Act.

2. In the present case, an “Application under Migration Act” has been filed under r.44.05, which identifies the decision which is the subject of the proceeding as a decision of a delegate of the Minister, John Maxwell-Owhochukwu, made on 29 December 2001. The applicant has today identified this decision as one in which the delegate decided that the applicant did not satisfy the criteria for the grant of a protection visa, and refused to grant him a protection (class A) visa.

3. That decision was undoubtedly a decision reviewable under

   
   

   Pt.7 of the Migration Act and, as I shall recount below, in fact it has been reviewed under that Part. The Court’s jurisdiction is therefore excluded by s.476(2)(a), and I must dismiss the application as incompetent.

4. The respondent has clearly raised this jurisdictional objection in a Response filed on 23 January 2006, and it was foreshadowed when the applicant attended a first Court date on 18 January 2006.  He was told that I would be addressing the issue at today’s listing.  This allowed him to consider his position, but, not unexpectedly, he has not been able to present any argument to establish jurisdiction. 

5. I note, to give background to the matter, that the applicant is no stranger to litigation.  He previously applied for merits review of this delegate's decision, and the Refugee Review Tribunal affirmed the decision on 2 October 2002. The applicant then unsuccessfully sought judicial review of the Tribunal's decision up to the High Court, and then again in this Court (see NADD v Minister for Immigration [2003] FMCA 203; NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1438; NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 072; SZFYI v Minister for Immigration [2005] FMCA 1186; and SZFYI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1654).

6. I also note that the grounds which have been set out in the present application seeking judicial review of the delegate's decision reproduce a precedent which, under the Court's previous jurisdiction, I addressed on numerous applications for summary dismissal (see, in particular, SZGMZ v Minister for Immigration [2005] FMCA 1549). It seems likely that, even if the Court had jurisdiction, I would have dismissed the application as an abuse of process.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  20 February 2006