SZHVP v Minister for Immigration
[2007] FMCA 1272
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1272 |
| MIGRATION – Review of decision by Refugee Review Tribunal. |
| Migration Act 1958 (Cth), ss.477; 477(1) |
| Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 211 |
| Applicant: | SZHVP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2049 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 July 2007 |
| Date of last submission: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr S. Moloney, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2049 of 2007
| SZHVP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks orders pursuant to an application filed on
19 July 2007, that the proceeding before this Court, commenced by way of application filed on 3 July 2007, be summarily dismissed on the grounds that the applicant has no reasonable prospect of successfully prosecuting the claim for relief and the claim for relief is frivolous and vexatious and the claim for relief is an abuse of process of the Court.
The first respondent in his response filed on 12 July 2007 contends that this Court has no jurisdiction to entertain the application filed by the applicant on 3 July 2007 pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”). Section 477(1) of the Act provides that:
“An application to the federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.”
The Court may extend that 28 day period by up to 56 days if an application for that order is made within 84 days of actual notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to do so. Otherwise the Court has no power to extend time to the applicant for making his application beyond the 28 day period.
The applicant states in the application filed on 3 July 2007 that he was notified of the Refugee Review Tribunal's decision on 31 October 2005. That would appear unlikely in that the Refugee Review Tribunal decision was not handed down until 22 November 2005. However,
I note that annexure B to the affidavit of Ms McDonald is a copy of the applicant's application filed on 15 December 2005 in this Court seeking review of the same Refugee Review Tribunal's decision. In that document the applicant states that notification of the decision was received by him on 23 November 2005. In the circumstances, the evidence before this Court would suggest that the applicant received notification of the Refugee Review Tribunal's decision on 23 November 2005.
On that basis I would be prepared to find that this Court has no jurisdiction to entertain the applicant's application.
However, if there were to be some problem with the notification to the applicant in terms of the strict compliance of notification, for the reasons referred to below I find that the filing by the applicant of his application on 3 July 2007 is an abuse of the Court's process having regard to the litigation history between these parties and the findings made by other Courts in finding that the Tribunal decision is not affected by jurisdictional error and the refusal by the Federal Court of Australia to grant leave in respect of that decision and of the High Court to grant special leave in respect of that decision.
The first respondent reads the affidavit of Zoe McDonald affirmed
19 July 2007 in support of that application. Ms McDonald's affidavit attaches the litigation history of this matter.
On 18 February 2005, the applicant arrived in Australia.
On 31 May 2005, the applicant lodged an application for a protection visa. On 3 June 2005 that application was refused by a delegate of the first respondent.
On 27 June 2005, the applicant sought review of the delegate's decision by the Refugee Review Tribunal. On 31 October 2005, the Refugee Review Tribunal affirmed the decision of the delegate to deny a protection visa and handed down its decision on 22 November 2005.
On 15 December 2005, the applicant lodged an application in the Federal Magistrates Court seeking judicial review of the Refugee Review Tribunal's decision. On 1 May 2006, the proceeding before the Federal Magistrates Court of Australia was dismissed by Driver FM on the basis that the decision of the Refugee Review Tribunal’s decision was not affected by jurisdictional error.
The consequence of that finding is that this Court has no jurisdiction to interfere further in the decision of the Refugee Review Tribunal on the basis that the decision is a privative clause decision.
The applicant sought leave to appeal from the decision of Driver FM on 18 May 2006 and on 19 October 2006 Buchanan J of the Federal Court of Australia refused the applicant's leave to appeal.
On 7 November 2006, the applicant filed an application with the High Court seeking leave to appeal and, on 14 December 2005 special leave was refused by the High Court in respect of the decision of Buchanan J.
On 3 July 2007, the applicant filed a further application in this Court identifying the following grounds:
“1. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
2. This application is not vexation not the abuse of process. A Tribunal decision can be reviewed by the court second time under certain circumstances. SZCTH v Minister for Immigration (no1)(2004) FACA 211
3.The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.”
Ground 2 of the application does not disclose any ground capable of review by this Court and is more a statement in response to orders that may be sought by the first respondent.
Grounds 1 and 3 are bare assertions of error unsupported by particulars or evidence. To the extent that either ground is capable of identifying an error capable of review by this Court, there has been a determination of the issue between these parties as to whether or not the decision of the Refugee Review Tribunal is affected by jurisdictional error has been determined. The first respondent submits that in respect of that issue there has been a res judicata and relies on the principles espoused in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 211 in support of that proposition.
In the circumstances, it is an abuse of the Court's process for the applicant to file an application in the terms of the application filed on
3 July 2007, having regard to the prior determination of that issue.
Where the Court has found that the proceeding before it is an abuse of process and having regard to the litigation history between the parties, it is appropriate that an order in the terms sought by the first respondent in Order 3 of the motion before the Court should be made.
The first respondent also seeks in Order 3 of the motion that the applicant be prohibited from lodging any further judicial review application in respect of the decision of the Refugee Review Tribunal signed on 31 October 2005, without leave of the Court.
Accordingly, I order that the proceeding before this Court, commenced by way of application filed on 3 July 2007, be dismissed either on the basis that this Court has no jurisdiction to entertain the application or because the application is an abuse of the Court's process.
I order that the applicant be prohibited from lodging any further application seeking judicial review of either the decision of the Refugee Review Tribunal dated 31 October 2005 or of the decision of the delegate of the first respondent dated 3 June 2005 without leave of the Court.
I order that the applicant pay the costs of the first respondent fixed in the amount of $2,300 and I note that such sum is in accordance with the relevant costs schedule of this Court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 July 2007
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