SZJTK v Minister for Immigration & Anor
[2009] FMCA 543
•2 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 543 |
| MIGRATION – RRT decision – second application for judicial review – extension of 35 day time limit – no arguable case for relief – extension of time not in the interests of the administration of justice – extension refused – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.476A, 477 Migration Legislation Amendment Act (No.1) 2009 (Cth) |
| SZJTK v Minister for Immigration [2008] FMCA 839 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 SZJTK v Minister for Immigration & Citizenship [2009] HCASL 75 SZLUC v Minister for Immigration [2009] FMCA 378 |
| Applicant: | SZJTK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 992 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 2 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms K Dunn |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The applicant must pay the costs of the first respondent in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 992 of 2009
| SZJTK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 27 April 2009, which seeks judicial review of a decision of the Refugee Review Tribunal handed down on 2 November 2006. The Tribunal affirmed a decision of a delegate of the Minister to refuse a protection visa to the applicant.
The validity of the Tribunal's decision has already been upheld in previous litigation of the applicant. Barnes FM dismissed his application after considering very numerous grounds presented in the applicant’s documents and oral submissions, including a challenge to the holding by the Tribunal of a hearing by videoconference link and dissatisfaction with the interpreter (see SZJTK v Minister for Immigration [2008] FMCA 839).
On appeal Reeves J considered the matter again, including new arguments presented by the applicant, and dismissed the appeal (see SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712).
The applicant applied for special leave to appeal to the High Court of Australia, but this was refused by Heydon and Bell JJ on 1 April 2009 (see SZJTK v Minister for Immigration & Citizenship [2009] HCASL 75). Their Honours said:
The papers filed in support of the applicant's application for special leave to appeal are in part pro forma in character, and related to the course of proceedings in the court below; in part raise only factual complaints; and in part raise issues correctly disposed of in the courts below.
The applicant's present application is less satisfactory than any of the previous documents relied on by him. It follows a precedent without presenting particulars of any argument of jurisdictional error affecting this particular decision of the Tribunal. Its unexplained contentions that the Tribunal did not address the applicant's claims and his evidence have previously been rejected. On the face of the present application it does not raise an arguable case for the relief claimed. The application also appears obviously hopeless on grounds of res judicata or Anshun estoppel.
The Minister has filed an interlocutory application for summary dismissal of the application, including under r.44.12 of the Federal Magistrates Court Rules. However, in my opinion, this is an appropriate case for the Court first to consider the competency of the application in relation to the time limit under s.477 of the Migration Act 1958 (Cth). That issue, with all the other interlocutory issues, was set down today for preliminary hearing, and the applicant was given notice of this in the order I made when adjourning the proceeding to today.
His application was filed on 27 April 2009, which is after the commencement of the amendments to the time limit effected by the Migration Legislation Amendment Act (No.1) 2009 (Cth). As I explained in SZLUC v Minister for Immigration [2009] FMCA 378, the transitional provisions accompanying the amendments gave a window of opportunity for people who wished to challenge decisions made before the commencement of the amendments. They were permitted to apply to this court without needing an extension of time, but only within a 35-day window of opportunity which ended on 21 April 2009.
This period expired six days before the filing of the present application. It therefore correctly includes an application for extension of time under s.477(2).
That subsection makes clear that an extension of time is only able to be granted if the court is satisfied that this is necessary in the interest of the administration of justice.
The litigation background which I have sketched above, and the lack of merits which I have pointed to in the application, make it clear, in my opinion, that this requirement is not satisfied. Far from being satisfied that an extension of time is necessary, I am satisfied that it would be contrary to the interests of the administration of justice to allow time to be extended so as to permit the applicant to bring his second application for judicial review. The applicant today was unable to present any argument to me justifying bringing a second application, other than his belief that he has not yet received justice. However, in my opinion, he has already received justice according to the laws of Australia.
I am therefore satisfied that the Court should today refuse the applicant’s application for an extension of time.
I note that pursuant to s.476A(3)(a) an appeal does not lie to the Federal Court from my refusal to extend time. I have taken this hardship into account when considering the appropriate response to the present application today. However, not only does the issue of competency and extension of time arise logically as the first issue to consider, prior to examining summary dismissal applications or a show cause hearing, but the background to the matter makes it clearly appropriate for me first to address the issues raised by s.477.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 12 June 2009
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