SZLQZ v Minister for Immigration and Anor (No.2)

[2008] FMCA 985

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 985

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application incompetent and an abuse of process.

Migration Act 1958 (Cth), s.477

SZLQZ v Minister for Immigration & Anor [2008] FMCA 194

SZLQZ v Minister for Immigration [2008] FCA 717

Applicant: SZLQZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1625 of 2008

Judgment of: Driver FM

Hearing date: 15 July 2008

Delivered at: Sydney

Delivered on: 15 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Crittenden
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed as incompetent.

2. No further application by this applicant to review any migration decision relating to the applicant’s protection visa application made on 14 May 2007 is to be accepted for filing in this Court, except by leave of a Federal Magistrate.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1625 of 2008

SZLQZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 25 June 2008. 

   
   

   The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 25 October 2007. 

   
   

   The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The application is supported by a short affidavit which I received in which the applicant states he needs an extension of time to file his show cause application. The application asserts notification of the Tribunal decision on the date of handing down on 25 October 2007. Attached to the applicant's affidavit is a Refugee Review Tribunal handing down information form which states that the applicant attended the handing down. The document bears the applicant's signature. There is no acknowledgement on the form of receipt of documents but the applicant told me from the bar table that he was personally given a copy of the Tribunal decision at the time he attended the handing down. I have no reason to doubt that. On that basis, the applicant was, as is asserted in his application, actually notified of the Tribunal decision on 25 October 2007. It follows, pursuant to s.477 of the Migration Act 1958 (Cth) that the application presently before the Court is incompetent. That is because more than 84 days have passed since the date of notification of the Tribunal decision. It is well established that the Court has no jurisdiction to consider a request for an extension of time after the period of 84 days has passed.

3. In addition, I have before me the affidavit of Alissa Maree Crittenden filed on 10 July 2008. That affidavit establishes that the Tribunal decision has previously been the subject of judicial review proceedings in this Court and the Federal Court. I dismissed the previous application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on 20 February 2008[1].  On 20 May 2008 his Honour Flick J dismissed an application for leave to appeal from my orders[2].  At paragraph 15 of his reasons for judgment, his Honour states:

   The decision of the Tribunal does not expose any jurisdictional error, denial of natural justice or other failure to comply with "procedures". Nor is any appealable error evident from the reasons for decision of the Federal Magistrates Court dismissing the application before that Court.

   [1] SZLQZ v Minister for Immigration & Anor [2008] FMCA 194

   [2] SZLQZ v Minister for Immigration [2008] FCA 717

4. Even if this Court had jurisdiction to entertain the present application it would, in my view, be liable to summary dismissal as an abuse of the Court's process.

5. The applicant told me from the bar table that there are humanitarian issues in his case because of medical conditions suffered by several of his children.  He remains afraid to return to India.  He would like to stay in Australia for another year in order to obtain medical treatment for his children.  Those are issues that the Minister could consider if he was so minded.  They are beyond the scope of this proceeding.

6. The application should be dismissed summarily with costs and the applicant should not be permitted to make further applications in relation to his protection visa application without leave of the Court.  

   
   

   I will order that the application be dismissed as incompetent. I will further order that no further application by this applicant to review any migration decision relating to the applicant’s protection visa application made on 14 May 2007 is to be accepted for filing in this Court, except by leave of a Federal Magistrate.

7. The Minister seeks an order for costs in the sum of $600. 

   
   

   The applicant said that he would pay those costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $600.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  17 July 2008