SZJOD v Minister for Immigration - [2006] FMCA 1869

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1869

MIGRATION – Review of decision by second differently constituted Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 of Federal Magistrates Court Rules 2001 – extensive litigation history – whether applicant’s application to second constituted Refugee Review Tribunal was filed within prescribed time limit.

Federal Magistrates Court Rules 2001, r.44.12
Migration Act 1958 (Cth), ss.411(1)(c); 412(1)(b)
MigrationRegulations 1994, r.4.31(2)(b)

Applicant:

SZJOD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3061 of 2006

Judgment of:

Emmett FM

Hearing date:

7 December 2006

Date of last submission:

7 December 2006

Delivered at:

Sydney

Delivered on:

7 December 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Mr J. Wright, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3061 of 2006

SZJOD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 8 November 2006, this matter was set down for a show cause hearing, pursuant to r.44.12 of the Federal Magistrates Court Rules 2001. The first respondent filed a response on 2 November 2006 contending that the application filed by the applicant on 20 October 2006 does not establish any jurisdictional error, has no reasonable prospect of success, is frivolous and vexatious and otherwise an abuse of process and should therefore be dismissed.
In support of the first respondent’s application, the first respondent read the affidavit of Nicola Johnson, sworn 2 November 2006 and filed on that date. That affidavit, inter alia, records the procedural chronology of the applicant’s litigation arising from the decision of the delegate of the first respondent to refuse him a protection visa application.
Annexure A to the affidavit of Ms Johnson discloses that the applicant was born in India on 16 July 1981 and arrived in Australia on 2 October 2002. The applicant lodged an application for a protection visa on 2 October 2002, and on 19 November 2002, a delegate of the first respondent (“the Delegate”) refused the applicant a protection visa on the basis that he was not a person to whom Australia has protection obligations.
On 21 November 2002, the applicant lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal (“the First Tribunal”). On 18 September 2003, the First Tribunal affirmed the Delegate’s decision.
Thereafter, the applicant sought judicial review of the First Tribunal’s decision, first in the Federal Magistrates Court by way of application filed on 8 October 2003. On 4 May 2005, the Federal Magistrates Court dismissed the applicant’s application on the basis that the First Tribunal’s decision disclosed no jurisdictional error.
On 19 May 2005, the applicant lodged a notice of appeal with the Federal Court of Australia in respect of the decision of the Federal Magistrates Court, and that appeal was dismissed on 15 August 2005 on the basis that the decision of the Federal Magistrates Court was correct.
Thereafter, the applicant sought special leave in the High Court by way of application filed on 7 September 2005. That application for special leave was refused on 3 August 2006, on the basis that an appeal would have no prospects of success.
On 21 August 2006, the applicant lodged a further application for review of the Delegate’s decision with the Refugee Review Tribunal (“the Second Tribunal”). On 6 October 2006, the Second Tribunal found that it had no jurisdiction to review the Delegate’s decision on the basis that the applicant’s application for review was outside the mandatory time limit and, in any event, the First Tribunal had discharged its duty in respect of the earlier review.
On 20 October 2006, the applicant filed an application in this Court seeking judicial review of the Second Tribunal’s decision. That application is in a form that is seen regularly in this Court, and which discloses no relevant particulars.
In its decision, the Second Tribunal noted the legislative provisions in relation to time limits for an application for review, which found its jurisdiction to proceed with its review. In particular, the Second Tribunal noted that s.412(1)(b) of the Migration Act 1958 (Cth) (“the Act”) provides that an application for review of an RRT‑reviewable decision must be lodged within the period prescribed, being a period ending not later than 28 days after notification of the decision.
Section 411(1)(c) of the Act makes clear that a decision to refuse to grant a protection visa is an RRT‑reviewable decision. The Second Tribunal also referred to regulation 4.31(2)(b) of the MigrationRegulations 1994, which states that the 28‑day period commences from the date of notification. The Second Tribunal found that the decision notification letter dated 19 November 2002 was sent to the applicant by pre‑paid registered post on 19 November 2002, and that, in those circumstances, the last date that the application for review could be lodged ended on 26 December 2002. The Second Tribunal noted that the current application for review was not received by the Second Tribunal until 21 August 2006, clearly after expiration of the prescribed period.
The Second Tribunal noted that the applicant’s review did not seek to address the issue of the Second Tribunal’s jurisdiction to entertain the application, and concluded that, as the application for review was received by the Second Tribunal outside the mandatory time limit, it was not a valid application and the Second Tribunal has no jurisdiction to review the Delegate’s decision.
In the circumstances, there is no error apparent on the face of the Second Tribunal’s decision in its application of the relevant law, and its findings and conclusions were open to it on the material before it. In the circumstances, the applicant’s application filed on 20 October 2006 has no, or no reasonable, prospects of success.
Further, in circumstances where the applicant has pursued his rights of appeal with respect to judicial review of the First Tribunal’s decision through the Federal Magistrates Court, the Federal Court of Australia and the High Court of Australia, to allow the proceeding to continue would bring the administration of justice into disrepute.
The Court also has regard to the underlying public interest. The first respondent submitted that, when exercising discretion, it is appropriate for the Court to consider the underlying public interest that there be finality in litigation, and that a party should not be vexed over and again in the same matter, namely the review of the Delegate’s decision to refuse the applicant a protection visa. That is undoubtedly a correct statement of the relevant principles in law.
Having regard to the applicant’s litigation history, I find that, in filing the application in this Court on 20 October 2006, the applicant has engaged in an abuse of the Court’s process.
Accordingly, the proceeding before this Court, commenced by way of application filed on 20 October 2006, is dismissed.
The first respondent seeks costs on an indemnity basis fixed in an amount of $2300. For the reasons given above, in concluding that the applicant’s application is an abuse of the Court’s process, it is appropriate that indemnity costs be ordered.
Similarly, for the reasons referred to above, it is appropriate that an order be made that no further application by the applicant to review the decisions of the Refugee Review Tribunal dated 18 September 2003 or 6 October 2006 be accepted for filing, except with leave of the Court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 18 December 2006