SZIHB v Minister for Immigration

[2006] FMCA 472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 472

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

PRACTICE AND PROCEDURE – Application for judicial review following notice of discontinuance – new application a fresh proceeding – new proceeding out of time – whether notice of discontinuance can or should be set aside considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050
Applicant NACT of 2001 v Minister for Immigration [2004] FCA 316
Castanho v Brown & Root UK Limited [1981] AC 557
SZEHH v Minister for Immigration and Anor [2005] FMCA 1692

Applicant: SZHIB

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG386 of 2006

Judgment of: Driver FM

Hearing date: 5 April 2006

Delivered at: Sydney

Delivered on: 5 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Kerr
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG386 of 2006

SZIHB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 24 March 2006.  The application purports to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT decision was made on 18 May 1998.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The application does not comply with the Court rules in that the incorrect form has been used.  That could be remedied, but there is a more fundamental problem with the application.

2. The applicant had earlier applied for an order to show cause why relief should not be granted in relation to the RRT decision.  That earlier application was filed on 6 February 2006.  In that application the applicant disclosed that she was notified of the RRT decision 18 May 1998.  The effect of the Migration Litigation Reform Act 2005 (Cth) is that the applicant is taken to have been notified of the decision on 1 December 2005. Section 477 of the Migration Act 1958 (Cth) (“the Migration Act”) as it applies on and from 1 December 2005 requires an application to be lodged within 28 days of the date of notification. The show cause application had been filed outside that period and the applicant had sought an extension of time. The Court has jurisdiction to grant an extension of time provided that it is sought within 84 days of notification of the relevant decision. The show cause application was discontinued on 15 February 2006.

3. The effect of discontinuing an application is to bring that proceeding to an end: Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050 at [2]. The present application is therefore a fresh proceeding. The discontinuance of the show cause application is not a bar to a fresh proceeding, but s.477 of the Migration Act is a bar. Because the present application was filed more than 84 days after the date of notification of the RRT decision, the Court has no jurisdiction to entertain it.

4. I explored with the applicant whether I should treat her present application as an application for an order setting aside her earlier notice of discontinuance.  A discontinuance may be set aside if it is an abuse of process: Castanho v Brown & Root UK Limited [1981] AC 557. There is no suggestion of an abuse of process here. In an affidavit filed on 24 March 2006 the applicant explains that she changed her mind about her discontinuance of the show cause application because of her personal circumstances. Both the Federal Court in Applicant NACT of 2001 v Minister for Immigration [2004] FCA 316 and this Court in SZEHH v Minister for Immigration and Anor [2005] FMCA 1692 have found that a more general power to set aside a notice of discontinuance exists if sufficient cause can be shown. In both of those cases, the Court declined to set aside the discontinuance. I take the same view here. Something more than a simple change of mind on the part of the applicant would be required.

5. I will dismiss the application filed on 24 March 2006.

6. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $500.  If the present application had been a show cause application, the Federal Magistrates Court Rules 2001 (Cth) would have prescribed costs of $1,000. I am satisfied that $500 is an appropriate party/party assessment. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $500.

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

Associate:

Date:  11 April 2006