SZKIK v Minister for Immigration
[2008] FMCA 767
•11 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 767 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent – application apparently out of time and Tribunal decision previously found to be a privative clause decision. |
| Migration Act 1958 (Cth), ss.474, 477 |
| SZKIK v Minister for Immigration & Anor [2007] FMCA 1003 SZKIK v Minister for Immigration & Anor [2008] HCASL 169 |
| Applicant: | SZKIK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1115 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Nanson Australian Government Solicitor |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed as incompetent.
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 $1,000.
No further application by this applicant to review any migration decision relating to his protection visa application made on 5 June 2006, including the decision of the delegate made on 20 July 2006 and the decision of the Refugee Review Tribunal handed down on 13 February 2007 or any notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1115 of 2008
| SZKIK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 2 May 2008 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 13 February 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and arrived in Australia on 6 May 2006. He applied to the Minister's Department for a protection visa on 5 June 2006. That application was rejected by a delegate of the Minister on 20 July 2006. The applicant sought review of that decision by the Tribunal on 31 July 2006. The applicant was invited to a hearing before the Tribunal and attended on 5 December 2006. The Tribunal decision recounts the applicant's claims and the discussion that occurred at the hearing concerning those claims. The Tribunal noted in its decision that the applicant's claims had changed over time. The Tribunal found that the applicant had concocted claims for the purposes of his application.
On 21 May 2008 the Minister filed a response to the application. That response asserts that the applicant has not raised an arguable case for the relief he claims. Further, the response notes that there have been other judicial review proceedings in relation to the Tribunal decision and that the application is an abuse of process of the Court. The response is supported by the affidavit of Brin Ellen May Anniwell made on 20 May 2008. That affidavit details the litigation history of this applicant.
In his application the applicant asserts that he was notified of the Tribunal decision on 13 February 2007. That is the day on which the Tribunal decision was handed down. I note from the documents annexed to his supporting affidavit that the applicant was invited to the handing down of the Tribunal's decision. I confirmed with the applicant this morning that the asserted date of notification of the Tribunal decision was accurate. I explained to him that if the assertion was accurate the application would be clearly out of time. If the applicant attended the handing down of the Tribunal decision and was physically given a copy of the Tribunal decision on that day, there would be no doubt that the present application would be out of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). The application would be incompetent because more than 84 days have passed between the asserted date of notification of the Tribunal decision and the filing of the present application. Even if that were not so, it is in my view clear from the affidavit of Ms Anniwell that the application is incompetent by reference to s.474 of the Migration Act.
The applicant previously sought review of the Tribunal decision in this Court on 12 March 2007[1]. That application was dealt with by Smith FM who dismissed it. At [21] of his reasons his Honour said:
For the above reasons I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.
[1] SZKIK v Minister for Immigration & Anor [2007] FMCA 1003
His Honour's decision is not binding upon me but it is a persuasive finding that the Tribunal decision is a privative clause decision for the purposes of s.474 of the Migration Act.
On 10 July 2007 the applicant appealed from the decision of this Court to the Federal Court. Rares J dealt with that appeal and dismissed it[2]. At [23] of his reasons his Honour said:
In my opinion, no arguable jurisdictional error has been shown to have occurred or affected the way in which the Tribunal reached its findings of fact or ultimate conclusion.
[2] SZKIK v Minister for Immigration and Citizenship [2007] FCA 1671
His Honour's decision is binding upon me. In my view it constitutes a finding that the Tribunal decision is a privative clause decision for the purposes of s.474.
On 20 November 2007 the applicant sought special leave to appeal to the High Court. That application was dismissed by Gummow and Kiefel JJ[3]. At [4] their Honours state:
The applicant has not advanced any question of law that would justify a grant of special leave to appeal. There is no reason to doubt the correctness of the decisions below.
[3] SZKIK v Minister for Immigration & Anor [2008] HCASL 169
In my view, it follows from the findings of the superior Courts that the present application is incompetent because the Tribunal decision has already been found conclusively to have been a privative clause decision. Section 474 of the Migration Act therefore applies to prevent further review of the Tribunal decision by this Court.
Further, the binding decision of the Federal Court renders the present application doomed to fail. I ordered an immediate show cause hearing in this matter and I would be bound to conclude that the present application has no prospect of success.
I will order that the application be dismissed as incompetent.
In addition, the repeated bringing of applications to the Court to review the same Tribunal decision is a patent abuse of the Court's process and has been previously found to be so. Such abuses need to be actively discouraged. I will order that no further application by this applicant to review any migration decision relating to his protection visa application made on 5 June 2006, including the decision of the delegate made on 20 July 2006 and the decision of the Refugee Review Tribunal handed down on 13 February 2007 or any notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
The application having been dismissed in the circumstances of an abuse of process, the Minister should receive costs on an indemnity basis. The Minister claims those costs in the fixed amount of $1,000. The applicant re-asserted that he could not return to India. 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 $1,000.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 June 2008
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