SZJWO v Minister for Immigration
[2008] FMCA 611
•13 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 611 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal decision previously reviewed by the Courts – Tribunal decision already found to be a privative clause decision – show cause application incompetent and an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 474, 477 |
| SAAP v Minister for Immigration [2005] HCA 24 SZJWO v Minister for Immigration [2007] FCA 1267 SZJWO v Minister for Immigration & Anor [2008] HCASL 110 |
| Applicant: | SZJWO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 880 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent and pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 880 of 2008
| SZJWO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 11 April 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 31 October 2006 and handed down on 21 November 2006.
The applicant asserts notification of the decision on the day that the decision was handed down. If the applicant had attended the handing down of the Tribunal decision and had been physically given a copy of the decision on that day, the application would have been incompetent pursuant to s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). However, for other reasons, it is unnecessary to resolve that issue.
The application identifies four other legal proceedings in relation to this matter. The first of those proceedings was SYG373 of 2004. I understand that in that proceeding this Court set aside an earlier decision of the Tribunal and remitted the matter to the Tribunal for redetermination according to law. In SYG3749 of 2006 this Court previously considered the present Tribunal decision. Proceeding NSD780 of 2007 was an appeal to the Federal Court against the decision of this Court. Proceeding S415 of 2007 was a special leave application to the High Court.
The application asserts jurisdictional error for reasons of procedural unfairness. The applicant makes particular reference of use by the Tribunal of independent country information. The application appears also to cavil with the merits of the Tribunal decision. The application is supported by an affidavit by the applicant, which annexes the Tribunal decision. That decision, which is 25 pages long, appears to me to be a comprehensive consideration of the applicant's claims. In his affidavit the applicant contends that the Tribunal failed to comply with its obligations under s.424A of the Migration Act. The applicant contends in his affidavit that this is the first occasion on which he has had the opportunity to advance an argument based on the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. For reasons which follow, that is a false contention.
The Minister's response filed on 22 April 2008 seeks the summary dismissal of the application as an abuse of process. The Minister relies upon the affidavit of Saloni Kantaria filed on 28 April 2008. The applicant admitted service of that affidavit. I accept from that affidavit that on 16 April 2007 Scarlett FM dismissed an earlier application to review the present Tribunal decision. The decision is reported as SZJWO v Minister for Immigration [2007] FMCA 553. At [33] of his judgment Scarlett FM said:
Whilst the Applicant had legal advice as recently as two hours before the hearing, he was not represented at the hearing. Accordingly, I have considered the Tribunal decision and supporting documentation with an eye to ascertaining whether any arguable case for any jurisdictional error is made out. I am satisfied that there is no jurisdictional error.
His Honour went on to find at [34] that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. I am not bound by his Honour's decision, but I should follow it unless there is a good reason not to.
I also accept from Ms Kantaria's affidavit that on 31 July 2007 his Honour North J of the Federal Court dismissed an appeal from the decision of this Court[1]. It is significant that in the appeal the applicant attempted to raise what appears to be the same argument of an alleged breach of s.424A of the Migration Act as he now refers to in his supporting affidavit. North J refused leave for that argument to be raised. His Honour found at [19] that the proposed new grounds of appeal were bound to fail. His Honour also found that the ground of appeal raised against the decision of this Court had no merit.
[1] SZJWO v Minister for Immigration [2007] FCA 1267
I accept from the affidavit of Ms Kantaria that on 27 March 2008 the High Court refused special leave to appeal from the decision of the Federal Court[2]. The transcript of the special leave hearing is annexed to the affidavit. At [2] their Honours Heydon and Crennan JJ found that there was no reason to doubt the correctness of the conclusions reached in the Courts below. I take that to be a conclusive finding that the decision of the Tribunal is free from jurisdictional error and hence that the decision is a privative clause decision for the purposes of s.474 of the Migration Act.
[2] SZJWO v Minister for Immigration & Anor [2008] HCASL 110
It necessarily follows that this Court has no jurisdiction to entertain the present application. Even if that were not the case, the application should be dismissed as an abuse of process. The applicant in these proceedings is seeking to agitate issues that have either been raised previously or for which leave was refused. The applicant's statement in his unsworn affidavit that he has not had a prior opportunity to raise the argument based upon the decision of the High Court in SAAP is false.
The Minister should not be required to repeatedly deal with the same issues in respect of the same Tribunal decisions. The attempt by the applicant to do so in these present proceedings is an abuse of the Court's process. I will dismiss the application as incompetent and pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. An abuse of process having been found, the Minister is entitled to receive his costs on an indemnity basis. The Minister seeks an order for costs fixed in the amount of $500. The Minister's actual costs are likely to be somewhat more than that but have not been quantified. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 May 2008
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