SZMRR v Minister for Immigration
[2009] FMCA 878
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 878 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application for an extension of time – application incompetent. |
| Federal Magistrates Court Rules, rr.13.03, 16.05 Migration Act1958 (Cth), ss.424, 424A, 476, 477, 486D |
| SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 SZJTK v Minister for Immigration & Anor [2009] FMCA 5431 SZLUC v Minister for Immigration & Anor [2009] FMCA 378 SZMRR v Minister for Immigration and Citizenship & Anor [2009] HCASL 142 SZMRR v Minister for Immigration and Citizenship [2009] FCA 159 SZMRR v Minister for Immigration & Anor [2008] FMCA 1522 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 |
| Applicant: | SZMRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1648 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time be refused.
The application filed by the applicant on 13 July 2009 be dismissed as incompetent.
The applicant pay the costs of the first respondent fixed in the sum of $1,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1648 of 2009
| SZMRR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant filed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant him a protection visa on 13 July 2009. In that application he indicated that he sought an extension of time for making the application under s.477 of the Migration Act1958 (Cth).
At a directions hearing conducted on 30 July 2009, which it appears the applicant did not attend, directions were made for the filing of further documentation and the matter was listed for hearing today at 10.15 am. The first respondent was ordered to notify the applicant of the orders made and has filed written submissions, an amended response and a supporting affidavit of Brin Anniwell of 29 July 2009. No further documents have been filed by the applicant.
There was no appearance by the applicant today when the matter was first called. Nor is there any appearance now some 15 minutes later. There has not been any indication from the applicant as to any reason for his failure to attend.
In the particular circumstances of this case, rather than dismissing the application for non-appearance, I am asked by the solicitor for the first respondent to proceed with the hearing, at least in relation to the application for an extension of time, in accordance with r.1303C(1)(e) of the Federal Magistrates Court Rules.
While in the normal course of events if an applicant failed to appear I would dismiss the matter for non-appearance, in the particular circumstances of this case I consider that it is appropriate to proceed in the manner sought by the first respondent. The circumstances of this case that lead me to that view are the fact that the applicant brought prior judicial review proceedings in relation to the same Tribunal decision in this Court and on appeal to the Federal Court and made an unsuccessful application for special leave to appeal to the High Court.
I consider it appropriate to deal with the application for an extension of time notwithstanding the absence of the applicant. I note the application of r.16.05 of the Federal Magistrates Court Rules in relation to the possibility that there is an explanation for his failure to appear.
Under s.477 of the Migration Act an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 in relation to a migration decision must be made within 35 days of the date of the migration decision. Under subsection (2), the Court may extend that 35 day period as it considers appropriate, if an application for such an order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make that order and the Court is satisfied that it is necessary in the interests of the administration of justice to make that order.
In this case the applicant, a citizen of India, arrived in Australia in December 2007 and applied for a protection visa in February 2008. The application was refused and the applicant sought review by the Tribunal. The Tribunal affirmed the decision of the delegate of the first respondent by decision signed on 17 July 2008 and handed down on 12 August 2008. In essence, as was recorded by Gummow and Kiefel JJ in relation to the special leave application (SZMRR v Minister for Immigration and Citizenship & Anor [2009] HCASL 142):
The applicant claimed to be a Muslim in a relationship with a Hindu woman. He claimed that, because of that relationship, he had been attacked by members of the RSS, a Hindu organisation in which the woman's father was a prominent figure. He also claimed to have done some work for two Muslim organisations: the TMMK and the TNTJ. He claimed to have been involved with social welfare and proselytising and to have been threatened by the RSS as a result. The Tribunal noted the vague nature of the applicant's evidence and various inconsistencies in it. It concluded that the applicant was not a witness of truth and that he was not owed protection obligations.
On 25 August 2008 the applicant filed an application for judicial review of the Tribunal decision in this Court. On 20 November 2008 Scarlett FM dismissed the application, finding no jurisdictional error in the decision of the Tribunal. It is apparent from the decision (see SZMRR v Minister for Immigration & Anor [2008] FMCA 1522) that his Honour considered each of the grounds for judicial review in the application relied on by the applicant, including the possibility of a breach of s.424 or s.424A.
The applicant then appealed to the Federal Court. Logan J dismissed the appeal on 20 February 2009, finding no error on the part of the federal magistrate (see SZMRR v Minister for Immigration and Citizenship [2009] FCA 159). Again, it is notable that Logan J not only addressed the grounds relied on by the applicant, but also, given the absence of legal representation, sought amplification from him of the concerns he had which lay behind the grounds of appeal (see SZMRR at [5]). His Honour addressed those concerns and the possibility of any jurisdictional error in the decision of the Tribunal.
The appeal was dismissed. On 17 March 2009 the applicant filed an application for special leave to appeal to the High Court of Australia. Dismissing that application on 17 June 2009, Gummow and Kiefel JJ stated that:
The application for special leave to this Court does not advance any question of law that would justify the grant of special leave to appeal. There is no reason to doubt the correctness of the decisions below.
Subsequently the applicant filed the present application on 13 July 2009. As indicated, he seeks an extension of time under s.477 of the Act. In his application he stated that the ground for the extension of time was that:
The application is neither vexation nor the abuse of process. A Tribunal decision can be reviewed by the Court in certain circumstances. The court previously reviewed numbers of cases.
In an affidavit accompanying his application the applicant sought to raise “a new line of argument” on the basis that recently Muslims in India were facing real problems with Hindu extremists and he believed that it was important for the sake of natural justice that his application for an extension of time be allowed. The applicant has not made any submissions in relation to this or matters of substance in relation to his claims and, as indicated, has not appeared today.
While the applicant has stated why he considers that an extension of time is necessary, the Court must be satisfied that it is in the interests of the administration of justice to make the order sought. As a preliminary point I note that as the application relates to a migration decision made before 15 March 2009, the date of commencement of Schedule 2 of the Migration Legislation Amendment Act (No. 1) 2009 which introduced the present form of s.477, by transitional provisions in that Act, the date of the Tribunal decision is to be treated as the date of commencement of the legislation (see s.21 and item 7 of Schedule 2). The result of this is that the date of the decision of the Tribunal for present purposes is deemed to be 15 March 2009. As the application was not filed before 21 April 2009 it is outside the 35 days time limit in s.477(1) unless an extension of time is granted pursuant to s.477(2) of the Act (see SZJTK v Minister for Immigration & Anor [2009] FMCA 543 and SZLUC v Minister for Immigration & Anor [2009] FMCA 378).
I have considered all of the material before me. However, I am not satisfied that it is necessary in the interests of the administration of justice to extend the time for the making of this application. In particular, I have had regard to the fact that the Tribunal decision in issue has been the subject of prior judicial review by this Court, the Federal Court of Australia and the High Court of Australia. The applicant seeks to re-litigate the issue of jurisdictional error that was addressed in the earlier litigation.
I note in that respect that the grounds relied on previously and any possible ramification of those grounds were considered in detail by Scarlett FM and that, as indicated, Logan J gave the applicant an opportunity to elaborate on his claims and addressed any issues arising therefrom.
The general contentions that the applicant now makes in his application in relation to s.424A of the Act are matters that were considered by Scarlett FM. The applicant’s claims of procedural fairness generally were also addressed in the prior proceedings.
The claims that the applicant now makes about a change of circumstances in India after the Tribunal decision are not matters that would assist the Court to determine whether the Tribunal fell into jurisdictional error on the material before it at the time of its decision, and hence are not matters that satisfy the Court that it is appropriate to extend the time for making an application for judicial review of the Tribunal decision. I have borne in mind that merits review is not available in this Court and that factual matters do not provide a sufficient basis on which the Court can be satisfied that the interests of the administration of justice are served by extending the time for filing an application for review of a Tribunal decision.
The applicant has had and took the opportunity to seek judicial review of the Tribunal decision in prior proceedings. He would, were the proceedings to go ahead, face insuperable difficulties in his application under principles of res judicata and Anshun estoppel, given the past final decision on the merits (see SZHEW v Minister for Immigration and Citizenship [2009] FCA 783) and the principles in relation to Anshun estoppel considered in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10. The cause of action that was dismissed by Scarlett FM was in substance the same as that which the applicant seeks to raise again in the current proceedings. The two proceedings depend upon the same facts and seek review of the same Tribunal decision.
Moreover in circumstances where an applicant has had prior judicial review proceedings (as in this case) the repeated bringing of applications to re-agitate issues already dealt with by the court in relation to such a migration decision is an abuse of the process of the court. This is also relevant to the determination of the application for an extension of time.
I have also had regard to the generally expressed nature of the grounds in the application and the failure to identify clearly or to particularise any jurisdictional error or any arguable jurisdictional error on the part of the Tribunal.
The solicitor for the first respondent submitted that it was relevant to have regard to the fact that the applicant had not fully disclosed all previous judicial review applications as required under s.486D of the Act. I do not consider that that is a matter that is determinative of whether or not it is necessarily in the interests of the administration of justice to extend the time under s.477(2). It may be that in particular cases that would be of relevance, but in this case the applicant did disclose the Federal Magistrates Court and the Federal Court proceedings. I do not consider that any implication adverse to the applicant should be drawn from his failure to also disclose the existence of the unsuccessful application for special leave to appeal to the High Court.
Nonetheless, in all the circumstances, having regard to the prior proceedings in particular, and the nature of the current application, I am not satisfied that it is necessary in the interests of the administration of justice that there should be an extension of time under s.477(2). Hence the application has been brought out of time and should be dismissed as incompetent.
The applicant has been unsuccessful in that his application is incompetent. It is appropriate that unsuccessful applicant meet the costs of the first respondent. The amount of $1,865 is appropriate having regard to the nature of this and other similar matters.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 11 September 2009
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