SZLJJ v Minister for Immigration
[2009] FMCA 387
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 387 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent and an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| SZLJJ v Minister for Immigration & Anor [2008] FMCA 563 SZLJJ v Minister for Immigration and Citizenship [2008] FCA 1244 SZLJJ v Minister for Immigration and Citizenship [2009] HCASL 13 SZLNN v Minister for Immigration & Anor [2009] FMCA 350 |
| Applicant: | SZLJJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 585 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 29 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Attard Australian Government Solicitor |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing, pursuant to rule 44.11 of the Federal Magistrates Court Rules 2001 (Cth).
The application filed on 11 March 2009 is dismissed as incompetent.
No further application by this applicant to review any migration decision relating to his protection visa application made on 20 April 2007, including but not limited to the decision of the Refugee Review Tribunal handed down on 30 August 2007, be accepted for filing in this Court except by leave of a Federal Magistrate.
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 $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 585 of 2009
| SZLJJ |
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 March 2009. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 30 August 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The application is supported by a short affidavit. I received paragraph 1 of the affidavit as evidence and paragraph 2 as a submission. The application is opposed by the Minister. I incorporate in this judgment the grounds of opposition in the Minister's response filed on 23 March 2009:
1.The Court lacks jurisdiction to hear the application [Rule 44.06(2)(a)].
Particulars
1.1 The application is out of time.
a) The decision of the second respondent, dated 9 August 2007, was handed down on 30 August 2007 and sent to the applicant's nominated address for receiving correspondence by letter dated 30 August 2007.
b) According to the applicant's application to this Court, the applicant was notified of the second respondent's decision on 30 August 2007.
c) The applicant filed an application for judicial review of the second respondent's decision on 26 September 2007. That application was supported by an affidavit sworn by the applicant dated 26 September 2007 to which was attached a copy of the second respondent's decision.
d) Contrary to the requirements of s 477(1) of the Migration Act 1958 (Cth) [(“the Migration Act”)], the application to this Court was not made within 28 days of the actual notification of the decision.
e) In so far as the applicant seeks an extension of time in which to bring the application, the application for an extension of time is misconceived as it was not made within 84 days of the actual notification of the decision as required by s 477(2) of the Migration Act 1958 (Cth). The Court has no power to extend time beyond 84 days of the actual notification of the decision.
In the alternative
2.There have been other judicial review proceedings in relation to the decision [Rule 44.06(2)(c)].
Particulars
2.1The previous judicial review proceedings have all been unsuccessful. The application is an abuse of the process of the Court.
a) Federal Magistrates Court proceedings number SYG 2971 of 2007, dismissed by Cameron FM on 23 April 2008: SZLJJ v Minister for Immigration and Citizenship [2008] FMCA 563 ;
b) Federal Court of Australia proceedings number NSD 677 of 2008, being an appeal from the judgment of Cameron FM, dismissed by Marshall J on 14 August 2008: SZLJJ v Minister for Immigration and Citizenship [2008] FCA 1244.
c) High Court of Australia proceedings number S413 of 2008, being an application for special leave to appeal the decision of Marshall J, dismissed by Gummow and Keifel JJ on 11 February 2009: SZLJJ v Minister for Immigration and Citizenship [2009] HCASL 13.
3.There has been delay in seeking the remedy [Rule 44.06(2)(b)].
4.The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].
The Minister's response is supported by the affidavit of Louise Bernadette Buchanan made on 1 April 2009. I received that affidavit. I accept her evidence concerning the applicant's litigation history.
I ordered an immediate show cause hearing in this matter today, in light of the Minister's response. I invited submissions from the applicant and he referred to problems in India for Muslims. He claimed an inability to return to India at the present time, although he thought he might be able to return there after the conclusion of the present elections. He admitted that his present application was made in order to obtain additional time to remain in Australia.
I accept the Minister's submissions that the present application before the Court is incompetent. The present show cause application and the earlier application to this Court to review the same Tribunal decision both assert notification of the Tribunal decision on 30 August 2007, when the decision was handed down. That assertion cannot be correct, because it does not appear that the applicant attended the handing down of the decision. A copy of the decision was mailed to him. In his oral submissions, he acknowledged receipt of the decision. It is clear from Ms Buchanan's affidavit that the applicant had physically received a copy of the Tribunal decision when he filed his first application in this Court to review it, on 26 September 2007. It is obvious that more than 84 days have passed since 26 September 2007. That is the maximum period within which the Court could entertain an application, pursuant to s.477 of the Migration Act, in the form of that section as it applied up to 15 March 2009. It is perhaps ironic that, if the applicant had filed his application four days later, it would have been within time[1]. However, as at the date of filing the present application, it was patently out of time and incompetent. I so find.
[1] see SZLNN v Minister for Immigration & Anor [2009] FMCA 350 at [5]
I will order that the application filed on 11 March 2009 is dismissed as incompetent.
Even if the Court had jurisdiction to entertain the application, I would summarily dismiss it as an abuse of process. It is plain, and the applicant concedes, that the present application is simply an attempt to extend his stay in Australia. The issues raised have already been dealt with by this Court, the Federal Court and the High Court, in the earlier legal proceedings referred to in Ms Buchanan's affidavit. The Minister should not be continually vexed by applications of this nature.
I will order that no further application by this applicant to review any migration decision relating to his protection visa application made on 20 April 2007, including but not limited to the decision of the Refugee Review Tribunal handed down on 30 August 2007, be accepted for filing in this Court except by leave of a Federal Magistrate.
The application having been dismissed and an abuse of process having been found, the Minister seeks indemnity costs of $1,600. The applicant sought a reduction of that amount, but that related to his capacity to pay, rather than the appropriateness of the amount sought. I accept that costs of not less than $1,600 have been appropriately incurred by the minister in this matter to date. An abuse of process having been found, an order for indemnity costs is warranted. 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 $1,600.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 May 2009
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