SZIPA v Minister for Immigration
[2006] FMCA 682
•1 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 682 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa. PRACTICE & PROCEDURE – Jurisdiction of Refugee Review Tribunal – abuse of process – where application makes second application to RRT to review a delegate’s decision that has already been reviewed – application out of time. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.411, 412, 414 |
| NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1005 NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 287 NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 394 SZGRR v Minister for Immigration & Multicultural & Indigenous Affairs & Anor FMCA 1562 SZGRR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1814 |
| Applicant: | SZIPA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 952 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 May 2006 |
| Date of Last Submission: | 1 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The application is an abuse of process.
The Applicant is to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $1,300.00.
No application for review of any decision of the Refugee Review Tribunal is to be accepted from the Applicant without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 952 of 2006
| SZIPA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 13th March 2006. The application is without any merit whatsoever. The decision of the Tribunal was that it did not have jurisdiction to entertain the applicant’s application for review.
There are two reasons why the Tribunal held that it did not have jurisdiction.
First, because the decision of the delegate of the Minister refusing the applicant a protection visa, which the applicant asked to have reviewed, was handed down on 21st June 2001. The application was clearly out of time by several years under the provisions of s.412 of the Migration Act. The other reason is that the Tribunal has already reviewed the decision. There is nothing to review.
The fact is that the applicant has a litigation history which indicates a history of applications to review the same decision. The decision of the delegate was made on 21st June 2001. The applicant sought a review by the Refugee Review Tribunal. That decision was considered by the Tribunal, and on 22nd May 2003 the Tribunal affirmed the delegate’s decision to refuse a protection visa.
The applicant then sought a review of that decision from the Federal Court. On 19th September 2003 that application was dismissed with costs. The citation for that is NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1005. The applicant then appealed to the Full Court of the Federal Court, and on
2nd December 2003 the Full Court dismissed that appeal. The citation for that decision is NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 287.
The applicant then sought special leave to appeal to the High Court of Australia. That application was deemed abandoned on 24th June 2004. The applicant then filed a second application for special leave to appeal to the High Court, and that application was dealt with when Gleeson CJ and Gummow J refused an extension of time for filing the application and dismissed the application for special leave to appeal with costs. The citation for that is NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 394.
Undaunted by those rejections, the applicant then brought a fresh application for review of the same decision in the Federal Magistrates Court. On 11th October 2005 Smith FM dismissed that application as an abuse of process and ordered that no further application for review of the Refugee Review Tribunal’s decision, or for review of the delegate’s decision, or for review of any notification of those decisions, should be accepted for filing without prior leave of the Court.
The citation for that decision is SZGRR v Minister for Immigration & Anor [2005] FMCA 1562.
The applicant then appealed against that decision.
On 5th December 2005 in the Federal Court Edmonds J, exercising a delegated jurisdiction from the Full Court of the Federal Court dismissed an application for leave to appeal. The citation for that is SZGRR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1814.
The applicant then applied to the Refugee Review Tribunal to review the delegate’s decision again. That application was refused on the basis that there was no jurisdiction because:
a)the application was out of time; and
b)the Tribunal had already refused the decision.
The applicant sets out four grounds in his application as to why the decision of the Tribunal that it had no jurisdiction should be set aside. First, that the procedures required by the Migration Act and the Migration Regulations to be observed in connection with the making of a decision were not observed. There is no evidence of that. Quite the reverse is true. From my reading of the decision, the Tribunal followed the requirements of the Migration Act and quite correctly held that it had no jurisdiction.
The second ground was that the Tribunal ignored the merits of the claim and the Tribunal made a decision without any research of the applicable law. Leaving aside the comment that the applicant’s claim had no merit, it is clear that the Tribunal considered the nature of the application and made a decision that it had no jurisdiction. I see nothing to indicate that that was incorrect. There is no evidence that the Tribunal made the decision without any research of the applicable law. Quite the reverse is true. The Tribunal correctly referred to s.411, s.412 and s.414 of the Migration Act, as well as the appropriate regulations under the Migration Act.
The applicant claims that the Tribunal was an improper exercise of the power conferred by the Act or Regulations. In my view it was not. The Tribunal acted correctly. The applicant claims to have been denied natural justice. He was not. The Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the prescribed time limit and because the Tribunal had already reviewed the delegate’s decision. However, the Tribunal wrote to the applicant on 23rd January 2006 inviting submissions on that issue and the applicant made written submissions by a letter dated
1st March 2006.
The Tribunal noted in the penultimate paragraph of its decision the claims made by the applicant in his letter of 1st March which the Tribunal correctly found did not relate to the issue of jurisdiction, but related to the merits of his claim which had already been dealt with. The applicant was not denied natural justice.
The fourth and final ground that the applicant claimed was the decision involved an incorrect interpretation of the applicable law to the facts and circumstances and that the Tribunal’s decision was unreasonable and made without taking into account the gravity of the circumstances and consequences of the application. That is not so. The Tribunal interpreted the law correctly. The Tribunal’s decision was not unreasonable, and indeed any decision that the Tribunal did have jurisdiction would have been both unreasonable and incorrect in law.
There is no error in the Tribunal’s decision. The Tribunal was quite correct in finding that the application for review had no merit because the Tribunal had no jurisdiction. This is, as I have had occasion to say earlier in another matter, a scam. It is an application brought for an ulterior purpose, namely to obtain an extension of a bridging visa.
The applicant has a history and has already been found to have committed an abuse of process by my colleague, Smith FM. This is just another example. I would comment that it is rather surprising to me that in view of the history of multiple applications to the Court of no merit whatsoever, that the Minister takes no action to remove applicants’ bridging visas. That is a matter for the Minister.
The application is dismissed. Because it does not establish any jurisdictional error, there is no reasonable prospect of successfully prosecuting the proceeding and, most importantly, under pt.13 r.13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
I note that in a previous matter of this nature I awarded costs in the sum of $2,000.00. In my view $1,300.00 is well within the area of a costs order that is reasonable. I do propose to order costs on an indemnity basis because I have found these proceedings to be an abuse of process.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 May 2006
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