SZGWS v Minister for Immigration
[2006] FMCA 918
•21 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 918 |
| MIGRATION – A |
| Migration Act 1958 (Cth), ss.477(1), 477(2), 477(3) Migration Litigation Reform Act 2005 (Cth), sch.1 pt.2 cl.42 Federal Magistrates Court Rules 2001, Sch.1 |
| Applicant: | SZGWS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG662 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 June 2006 |
| Date of last submission: | 21 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox |
ORDERS
The application before this Court is dismissed.
That the applicant pay the first respondent's costs, fixed in an amount of $2500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG662 of 2006
| SZGWS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application in this Court on 2 March 2006 seeking judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) made on 21 June 2005. In that application the applicant states that the decision was received by him on 12 July 2005.
The first respondent filed a notice of motion on 14 June 2006 on two bases. The first basis was that the applicant's application should be dismissed as an abuse of process, frivolous and vexatious. The second basis is that the first respondent contends that this Court has no jurisdiction to hear the application on the basis that it was filed in excess of the 84-day period provided by s.477(2) of the Migration Act 1958 (“the Act”), being the period between notification of the Tribunal decision and the filing of the application.
Section 477(1) of the Act provides that an application for a remedy from the Federal Magistrates Court in respect of a decision of the Tribunal must be made to the Court within 28 days of notification of the decision.
s.477(2) allows the Federal Magistrates Court to extend that 28-day period up to a maximum of 84 days if the Court is satisfied that it is in the interests of the administration of justice to do so. Sub-s.(3) of s.477 has the effect that, if an application is filed after the expiration of that 84-day period, then the Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application that seeks relief in respect of a decision of the Tribunal outside that 28-day period.
The transitional provisions of the operation of the Act (Migration Litigation Reform Act 2005 (Cth) Schedule 1 Part 2 Clause 42[FMCoA1]) provide that notification is deemed to have occurred on 1 December 2005 in respect of applications for review of[FMCoA2] decisions of the Refugee Review Tribunal filed after 1 December 2005.
Even with the benefit of this later deemed notification period, the applicant's application is filed in excess of the 84-day limit.
In the circumstances, this Court has no jurisdiction to extend any further the time for filing of the applicant's application, and the application must therefore be dismissed.
Even if that were not the case, I have regard to the procedural history of the applicant's litigation in respect of the Tribunal as identified in the affidavit of Kate McNamara, sworn 14 June 2006, read by the first respondent.
That history discloses that, on 3 August 2005, the applicant filed an application in this Court seeking judicial review of the same decision of the Tribunal as is before the Court today.
On 2 November 2005, Scarlett FM dismissed that application on the basis that the Tribunal decision was not affected by jurisdictional error.
On 16 November 2005, the applicant appealed the decision of Scarlett FM to the Full Court of the Federal Court of Australia. That Court was constituted by Moore J, who dismissed the appeal on 7 February 2006. That decision confirmed that there were no arguable jurisdictional errors of the Tribunal, or errors on the part of the Federal Magistrate in his determination of the proceedings for judicial review.
In those circumstances, the applicant has had the benefit of a substantive judicial review of the decision of the Refugee Review Tribunal by Scarlett FM who determined that the decision was not affected by jurisdictional error. That decision was considered and confirmed by Moore J.
In the circumstances, it is an abuse of the Court's process for the applicant to file a further application in this Court.
However, in light of my determination that this Court has no jurisdiction to entertain the applicant's application, it does not seem to me to be necessary or appropriate that I make an order dismissing the applicant's application on the basis of abuse of process, although, but for the consequences that flow from s.477 of the Act, I would be disposed to do so.
Accordingly, the application is dismissed.
The first respondent seeks costs pursuant to Pt 2 para.1(b) of Sch.1 of the Federal Magistrates Court Rules 2001 that provides for costs to be fixed in an amount of $2500 in respect of a proceeding concluded after the first Court date for the proceeding, and at or before the hearing under r.44.12 or other interlocutory hearing.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Choo
Date: 28 June 2006
[FMCoA1]Inserted the transitional provisions as I thought this would be helpful.
[FMCoA2]Inserted this as I think it makes it clearer about what the provision say.
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