SZIAA v Minister for Immigration

Case [2007] FMCA 1095

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1095
MIGRATION – RRT decision – second application for judicial review – application dismissed as incompetent.
Migration Act 1958 (Cth), ss.476, 477

Nguyen v Minister for Immigration [2006] FMCA 1495; 204 FLR 138
Nguyen v Minister for Immigration [2007] FCAFC 38
SZIAA v Minister for Immigration (2006) FMCA 443
SZIAA v Minister for Immigration (2006) FCA 1076
SZIAA v Minister for Immigration (2007) HCA Trans 224
SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200
SZICVv Minister for Immigration [2007] FCAFC 39

Applicant: SZIAA
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1826 of 2007
Judgment of: Smith FM
Hearing date: 3 July 2007
Delivered at: Sydney
Delivered on: 3 July 2007

REPRESENTATION

Counsel for the Applicant: In Person
Counsel for the First Respondent: Ms K Hooper
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The substantive application is dismissed as incompetent.

  2. The applicant must pay the first respondent’s costs in the sum of $1,000.

  3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 8 December 2005 reference N05/51800, or for review of the decision of the delegate of the first respondent dated 1 July 2005, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 10 June 2004, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1826 of 2007

SZIAA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. I have before me an application filed on 12 June 2007, seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 November 2005 and handed down on 8 December 2005. 


    The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.

  2. The Court's jurisdiction under s.476 is subject to a time limit under s.477 which allows, at most, 84 days for making an application after the actual notification of the Tribunal's decision to the applicant. The legal effectiveness of that time limit has been upheld in numerous cases, including two judgments of the Full Court on appeal from decisions of myself (see SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200, upheld in SZICVv Minister for Immigration [2007] FCAFC 39, and Nguyen v Minister for Immigration [2006] FMCA 1495, 204 FLR 138, upheld in Nguyen v Minister for Immigration [2007] FCAFC 38).

  3. In the present case, the applicant cannot contest that he received actual notification soon after the Tribunal's decision, and that his present application is long out of time.  This is because he has brought previous litigation challenging the validity of the Tribunal's decision. His litigation was unsuccessful (see SZIAA v Minister for Immigration (2006) FMCA 443, SZIAA v Minister for Immigration (2006) FCA 1076, and SZIAA v Minister for Immigration (2007) HCA Trans 224).

  4. The Minister has given notice to the applicant of an interlocutory application seeking the dismissal of the new application summarily today.  I am satisfied that he has had sufficient notice to consider his position, and that it is appropriate to make the orders sought by the Minister today, notwithstanding that this is the first Court date on the application. 

  5. The applicant has no conceivable basis for supporting his application.  In his affidavit and orally, he maintains his fear of return to his country of nationality, but that cannot provide justification for commencing fresh proceedings for relief already denied in courts up to the High Court. 

  6. On what he has said to me today, I am satisfied that he does not appreciate that this litigation must come to an end.  In the circumstances, I consider it appropriate to direct the Registry not to accept further applications in relation to his protection visa application without the prior leave of the court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date: 12 July 2007

Details
AGLC
SZIAA v Minister for Immigration [2007] FMCA 1095
Case
[2007] FMCA 1095
Decision Date

CaseChat Overview and Summary

The applicant, SZIAA, brought an application seeking a remedy under section 476 of the Migration Act 1958 (Cth) against the Minister for Immigration, contesting a decision of the Refugee Review Tribunal that affirmed a delegate's refusal to grant him a protection visa. The application was deemed to be out of time as it was filed well beyond the 84-day limit stipulated by section 477 of the Migration Act for such applications. The applicant had previously challenged the Tribunal's decision in various courts, including the High Court, all of which were unsuccessful. The Minister moved for the dismissal of the current application on the grounds of it being time-barred.

The court was required to determine whether the application could be entertained despite being filed outside the statutory time limit and whether there were any exceptional circumstances that warranted the grant of leave to file the application out of time. The court considered the applicant's submissions, both in writing and orally, and noted that he had no new arguments or evidence to present that could change the outcome of previous decisions. The court also highlighted the lack of appreciation by the applicant that this litigation must come to an end, given the multiple failed attempts to overturn the Tribunal's decision.

The court dismissed the application as incompetent due to the time bar and noted that the applicant had no basis to support his application, having already exhausted all legal avenues. The court also ordered that the applicant pay the Minister's costs in the sum of $1,000 and directed that no further applications regarding the protection visa application shall be accepted without the prior leave of the court. This decision was made to prevent the applicant from continually bringing the same matter before the courts without any new grounds for review.

Orders

Orders of the court

1.

The substantive application is dismissed as incompetent.

2.

The applicant must pay the first respondent’s costs in the sum of $1,000.

3.

Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 8 December 2005 reference N05/51800, or for review of the decision of the delegate of the first respondent dated 1 July 2005, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 10 June 2004, shall be accepted for filing without prior leave of the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I have before me an application filed on 12 June 2007, seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 November 2005 and handed down on 8 December 2005. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant. The Court's jurisdiction under s.476 is subject to a time limit under s.477 which allows, at most, 84 days for making an application after the actual notification of the Tribunal's decision to the applicant. The legal effectiveness of that time limit has been upheld in numerous cases, including two judgments of the Full Court on appeal from decisions of myself (see SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200, upheld in SZICVv Minister for Immigration [2007] FCAFC 39, and Nguyen v Minister for Immigration [2006] FMCA 1495, 204 FLR 138, upheld in Nguyen v Minister for Immigration [2007] FCAFC 38). In the present case, the applicant cannot contest that he received actual notification soon after the Tribunal's decision, and that his present application is long out of time. This is because he has brought previous litigation challenging the validity of the Tribunal's decision. His litigation was unsuccessful (see SZIAA v Minister for Immigration (2006) FMCA 443, SZIAA v Minister for Immigration (2006) FCA 1076, and SZIAA v Minister for Immigration (2007) HCA Trans 224). The Minister has given notice to the applicant of an interlocutory application seeking the dismissal of the new application summarily today. I am satisfied that he has had sufficient notice to consider his position, and that it is appropriate to make the orders sought by the Minister today, notwithstanding that this is the first Court date on the application. The applicant has no conceivable basis for supporting his application. In his affidavit and orally, he maintains his fear of return to his country of nationality, but that cannot provide justification for commencing fresh proceedings for relief already denied in courts up to the High Court. On what he has said to me today, I am satisfied that he does not appreciate that this litigation must come to an end. In the circumstances, I consider it appropriate to direct the Registry not to accept further applications in relation to his protection visa application without the prior leave of the court.