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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application for judicial review dismissed as incompetent as the RRT decision previously found to be free of jurisdictional error by the Full Federal Court.

SZCAT v Minister for Immigration [2004] FMCA 598 (13 September 2004)

SZCAT v Minister for Immigration [2004] FMCA 598 (13 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAT v MINISTER FOR IMMIGRATION
[2004] FMCA 598




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application for judicial review dismissed as incompetent as the RRT decision previously found to be free of jurisdictional error by the Full Federal Court.




Migration Act 1958 (Cth), ss.474, 477

Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24

SZCTT v Minister for Immigration [2004] FMCA 498

Applicant:
SZCAT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ2603 of 2003




Delivered on:


13 September 2004




Delivered at:


Sydney




Hearing date:


13 September 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Miss D Watson

Australian Government Solicitor




INTERLOCUTORY ORDERS

(1) The application is dismissed as incompetent.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ2603 of 2003

SZCAT



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an application filed on 30 April 2004 seeking the summary dismissal of an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The original application for judicial review was filed on 28 November 2003 and an amended application was filed on 30 August 2004. In addition to the application for summary dismissal, a notice of objection to competency was filed on behalf of the Minister on 13 January 2004 based upon s.477 of the Migration Act 1958 (Cth) ("the Migration Act").

2. The application for summary dismissal is supported by two affidavits by Kristy Lee Alexander made on 20 April 2004 and 9 September 2004. The first gives the litigation history of the matter and the second annexes the relevant decision of the RRT which was made on 21 December 2001 and handed down on 24 January 2002. Ms Watson, for the Minister, prepared written submissions on 6 September 2004 in support of the Minister's application for summary dismissal. That raises arguments of res judicata, estoppel and abuse of process. The principal applicant opposes the application for summary dismissal and filed written submissions on 30 August 2004.

3. At the outset of the hearing this morning I raised with the parties what seems to me to be a more basic issue of jurisdiction which needed to be resolved before I considered the Minister's application based on assertions of res judicata, estoppel and abuse of process. That more basic issue is an issue of jurisdiction. It is apparent from the affidavits by Ms Alexander that the application for judicial review was filed well outside the prescribed time period in s.477(1A) of the Migration Act. This Court has no jurisdiction to extend that time period. The time period prescribed operates where the decision subject to review is a privative clause decision. Ordinarily, that is the issue to be resolved on a judicial review application and the issue of any objection to the competency of the application cannot be resolved until a final hearing has occurred.

4. However, in this case, as in SZCTT v Minister for Immigration [2004] FMCA 498, the issue of whether the decision of the RRT is or is not a privative clause decision has, for the purposes of any proceedings in this Court, been conclusively determined by the Full Federal Court. That decision was made by the Full Federal Court on 27 November 2002. The decision was made prior to the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. Whether the decision is right or wrong, I am bound by it. I note that the Full Federal Court did not find it necessary in that case to resolve the interpretation of s.474 of the Migration Act because the Court found that there was not any jurisdictional error in the decision of the RRT. This Court is bound by a decision of the Full Federal Court on that issue.

5. The Full Federal Court has established conclusively for the purposes of proceedings in this Court that the decision of the RRT subject to review is a privative clause decision. It necessarily follows that the application is incompetent because it was filed well outside the period prescribed in the Migration Act for judicial review applications seeking a review of decisions of the RRT.

6. In the circumstances, I have no jurisdiction to entertain the judicial review application. I must dismiss it summarily; that I do.

7. On the question of costs, the application for judicial review having been dismissed summarily Ms Watson seeks an order for costs in the sum of $2,000 on a party/party basis. The actual costs incurred by the Minister are in the order of $2,400. Substantial preparation was required on behalf of the Minister for the hearing of the Minister's application for summary dismissal of the judicial review application. Although I did not get to the point of considering the legal arguments advanced by Ms Watson (the matter was dealt with by the Court on a more fundamental issue of jurisdiction) nevertheless the outcome was favourable to the Minister and unfavourable to the applicant. In the circumstances, I am satisfied that costs should follow the event.

8. Relatively little physical preparation of documents was required in order to resolve the case. I note that I do not have before me a book of relevant documents although I have been provided with the decision of the RRT. In my view, $1,800 is adequate recompense on a party/party basis for the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application for judicial review, which I fix in the sum of $1,800.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 September 2004
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