SZJTW v Minister for Immigration
[2009] FMCA 508
•18 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 508 |
| MIGRATION – Review of Refugee Review Tribunal decision – proceedings brought out of time – proceedings vexatious and an abuse of process. |
| Migration Act 1958, s.477 Migration Legislation Amendment Act (No.1) 2009, sch.2 item 7 |
| SZJTW & Anor v Minister for Immigration & Citizenship [2007] FMCA 481 SZJTW & Anor v Minister for Immigration & Citizenship [2007] FCA 1166 SZJTW & Anor v Minister for Immigration & Citizenship & Anor [2008] HCA 214 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| First Applicant: | SZJTW |
| Second Applicant: | SZJTX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 973 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 May 2009 |
| Date of Last Submission: | 18 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2009 |
REPRESENTATION
| The First Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed the amount of $1,175.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 973 of 2009
| SZJTW |
First Applicant
| SZJTX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By their application filed 24 April 2009 the applicants seek review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 2 November 2006 and handed down on 16 November 2006.
The first applicant claimed before the Tribunal that he feared persecution in India by reason of his political activities. The second applicant is the wife of the first applicant and appears to have no claim independent of his. The Tribunal concluded that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The matter came before the Court today for a first court date on the applicants’ application that the respondents show cause why relief should not be granted to them. However, the first respondent made an application instanter that the proceedings be dismissed on three bases. The first respondent submits that these proceedings have been brought out of time, are vexatious and oppressive, have a tendency to bring the administration of justice into disrepute and, in any event, failed to raise an arguable case for the relief claimed.
Section 477 of the Migration Act 1958 (“Act”) relevantly provides:
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The date of the migration decision as referred to in s.477(1) must, in the circumstances of this case where the decision was made in 2006, be determined by reference to item 7 of sch.2 to the Migration Legislation Amendment Act (No.1) 2009. Item 7(2) provides:
(2)If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.
The date of the commencement of sch.2 to the Migration Legislation Amendment Act (No.1) 2009 was 15 March 2009. That means that in order for a proceeding based on a 2006 Tribunal decision to have been brought within time it is necessary that it be filed within 35 days of 15 March 2009. That date is 19 April 2009, but because that day is a Sunday, r.3.04(4) of the Federal Magistrates Court Rules 2001 means that that date should be taken to be 20 April 2009. As already noted, these proceedings were commenced on 24 April 2009 and so are out of time.
Consequently, the Court does not have jurisdiction to entertain these proceedings unless, pursuant to s.477(2), the Court considers it is necessary in the interests of justice for it to do so, where an application for an extension of time has been made in writing, and such an application specifies why the applicant considers it is necessary in the interests of the administration of justice to make such an order. Unless both those pre‑conditions are satisfied then the Court cannot extend time for the commencement of proceedings such as these.
It should first be noted that the application filed on 24 April 2009 does include a written request for an extension of time. However, the only evidence provided to the Court in support of that application is the affidavit filed with the application. That affidavit contains nothing of substance which would satisfy the second part of the criterion set out in s.477(2)(a). The applicants filed written submissions on 14 May 2009 but these submissions are directed to the merits of the applicants’ application for a protection visa.
I am advised by Ms Anniwell who appears for the Minister today that those written submissions have not been supplied to the Minister and I was unaware of this before I entered into the giving of these reasons. I am not of the view that the Minister’s position has been compromised in any way by him not having seen those submissions.
Although the second part of the first criterion for the granting of an extension of time has not been satisfied, it is necessary to consider whether in the interests of the administration of justice the Court ought, nevertheless, make an order for the extension of time within which to bring the proceedings.
In this regard, the Minister has brought to the Court’s attention the litigation history of the applicants’ claims for protection. My consideration of these matters will affect not only my determination of the issue of whether it is in the interests of the administration of justice to extend time under s.477, but also whether the proceedings are vexatious and an abuse of the process of the Court and whether it is necessary for me to consider whether the application raises an arguable case for relief.
As already noted, the Tribunal’s decision was signed on 2 November 2006. On 20 March 2007 Smith FM in SZJTW & Anor v Minister for Immigration & Citizenship [2007] FMCA 481 considered the applicants’ application for judicial review of that Tribunal decision. In paragraph [17] of his Honour’s reasons for decision the following appears:
The applicant had no submissions to make to me today except that he was afraid to go back to India. In my opinion his application has not raised an arguable case for the relief claimed, and it is appropriate for me to dismiss it under r.44.12(1)(a).
I note in passing that the applicants’ submissions to the Court in these proceedings appear to be no more substantial than those which were placed before Smith FM.
On 1 August 2007, Lindgren J in the Federal Court heard an application from the applicants for leave to appeal from the judgment of Smith FM. Relevantly his Honour said:
A [sic] appeal would have no prospects of success. The decision of the Federal Magistrates Court is not attended with sufficient doubt to warrant appellate reconsideration of it. ... Leave to appeal should be refused with costs. (SZJTW v Minister for Immigration & Citizenship [2008] FCA 1166 at [17])
It appears that the applicants then sought special leave to appeal to the High Court from the decision of Lindgren J. In SZJTW & Anor v Minister for Immigration & Citizenship & Anor [2008] HCA 214, Kirby and Heydon JJ dismissed that application on 24 April 2008. It is apparent that the applicants have exercised their rights to obtain judicial review of the Tribunal decision and have exercised and exhausted all their appeal rights following the decision of Smith FM on 20 March 2007.
That being so, I cannot but conclude that the proceedings before me now are vexatious. The applicants knowing that they have been unsuccessful in an identical proceeding in the past have brought the respondents to Court once more although their rights have already been determined and are thus not open to further litigation in this Court. For the same reasons, the proceedings are also an abuse of the process of the Court.
For these reasons, it would not be in the interests of the administration of justice to extend time within which to bring these proceedings and, in any event, they would be dismissed pursuant to r.13.10 had the Court jurisdiction to entertain them.
Because an extension of time to bring these proceedings will not be given and the Court has no jurisdiction to entertain them, it is not strictly necessary to consider the final ground raised by the Minister that the application raises no arguable case for relief. Further, without a more proper consideration of the application than has been appropriate today, it is not possible to determine whether there is any reason to take a view of the merits of the application different to the one that was taken by Smith FM.
However, it should nevertheless be observed that the applicants are, in all probability, estopped from raising the matters that appear in the application because they either did or they should have raised before Smith FM anything that they would wish to raise now. The proceedings before Smith FM was their opportunity to raise those matters and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 demonstrates that they would be unlikely to be permitted to raise them again in these proceedings.
As I have concluded that it is not in the interests of the administration of justice to extend the 35 day time period within which to bring these proceedings, which is prescribed by s.477 of the Act, I find that the Court does not have jurisdiction to entertain the applicants’ application as it was brought out of time and it must be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 May 2009
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