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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - decision previously reviewed by the Federal Court which found no jurisdictional error - the RRT decision is a privative clause decision and the current judicial review application was filed out of time - application dismissed summarily as incompetent.

SZCOT v Minister for Immigration [2004] FMCA 630 (13 September 2004)

SZCOT v Minister for Immigration [2004] FMCA 630 (13 September 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCOT v MINISTER FOR IMMIGRATION
[2004] FMCA 630




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - decision previously reviewed by the Federal Court which found no jurisdictional error - the RRT decision is a privative clause decision and the current judicial review application was filed out of time - application dismissed summarily as incompetent.




Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.477

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

NALB v Minister for Immigration [2003] FCA 614

SZBML v Minister for Immigration [2004] FMCA 431

SZBML v Minister for Immigration [2004] FMCA 1195

Applicant:
SZCOT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ214 of 2004




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:


Ms R Leahy, Sparke Helmore



INTERLOCUTORY ORDERS

(1) The objection to competency is upheld.

(2) The application for judicial review filed on 28 January 2004 is dismissed summarily as incompetent.

(3) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ214of 2004

SZCOT



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a notice of motion and notice of objection to competency, seeking the summary dismissal of an application for judicial review filed on 28 January 2004. The notice of objection to competency was filed on 19 May 2004 and the notice of motion was filed on 28 May 2004.

2. Grounds (a) and (b) of paragraph 1 of the notice of motion were not pressed. I gave leave for two additional grounds to be added. These were that the application for judicial review discloses no cause of action and that the proceedings should be dismissed for failure to comply with an order of the Court. The Minister proceeds on the basis of the motion and notice of objection, supported by the affidavit of Jennifer Bautista, made on 28 May 2004. I received that affidavit as evidence in today's proceedings.

3. Ms Leahy, for the Minister, prepared written submissions which were filed on 2 September 2004 and also presented oral submissions. The applicant filed written submissions on the same day. He also presented short oral submissions.

4. It is apparent from the affidavit of Ms Bautista that the circumstances of these proceedings are somewhat similar to those that I dealt with in SZBML v Minister for Immigration [2004] FMCA 431. As in that case, there has been an earlier decision of a single judge of the Federal Court, not on appeal from this Court, that the decision of the Refugee Review Tribunal ("the RRT"), subject to review in the present proceedings, is not vitiated by any jurisdictional error. As I said in SZBML at paragraph 5, I am not strictly bound by the earlier decision of the Federal Court. However, I should follow the Federal Court decision unless I have some good reason to depart from it. My decision in SZBML has been upheld on appeal: SZBML v Minister for Immigration [2004] FCA 1195.

5. The earlier Federal Court decision in this case was made by Wilcox J on 16 June 2003. The citation is NALB v Minister for Immigration [2003] FCA 614. His Honour dismissed the application before him with costs. At paragraph 8 His Honour says:

The applicant has not submitted the Tribunal fell into error of law in its approach to his case. Neither does he suggest the Tribunal failed to follow required procedures. I see no error of law or failure to comply with proper procedure.

It followed that His Honour found no error of law and no jurisdictional error in the decision of the RRT. It appears from my reading of his Honour's reasons that that conclusion was drawn both on the basis of the application before the Court and His Honour's own examination of the material before him.

6. In the proceedings before this Court the applicant advances an assertion of a breach of the rules of procedural fairness. The application asserts that his case is identical with that of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. That is the only ground advanced. The application would have no prospect of success in the absence of agreed facts or evidence and particulars.

7. On 28 May 2004 Registrar Hedge relevantly ordered the applicant to file and serve an amended application giving complete particulars of each ground of review being relied upon and to file and serve any evidence upon which he proposed to rely by 9 July 2004. The applicant has not complied with that order. His submissions filed on 2 September 2004 do go some way to explain his judicial review application. However, there is no evidence to support the application and in the absence of evidence or an agreed statement of facts the application could not succeed.

8. I note that in his written submissions the applicant also asserts a failure to disclose country information which was in fact not part of the RRT decision. The applicant told me that he prepared his judicial review application and his written submissions with the assistance of a friend and that he paid no money for that assistance. The application and written submissions are in a similar form to documents filed in other proceedings and it is well that the applicant has paid no money for them. They are of little, if any, assistance to him.

9. The applicant told me that he was dissatisfied with the decision of Wilcox J but he has not filed any appeal against it. He has not given me anything to suggest that I should reach any different conclusion to that reached by His Honour. The Federal Court, having found that the decision of the RRT was a privative clause decision and no reason having been advanced to persuade me that I should consider seriously departing from that conclusion, I will follow the decision of the Federal Court.

10. I find that the decision of the RRT is a privative clause decision. The applicant is taken to have been informed of the decision of the RRT on 21 February 2003, a letter of advice having been sent on 12 February 2003. The application for judicial review in this Court was filed on 28 January 2004, well outside the 28 day time limit imposed by s.477(1A) of the Migration Act 1958 (Cth). It follows that the objection to competency should be upheld. The Court has no jurisdiction to enlarge the period prescribed for the filing of judicial review applications. The applicant would have been better advised to file an appeal against the decision of Wilcox J rather than to attempt to commence fresh proceedings in this Court.

11. As the decision of the RRT is a privative clause decision and the application in this Court was not filed in time, I have no jurisdiction to further entertain it.

12. I will dismiss the application summarily as incompetent.

13. If I were wrong in that conclusion, I would have nevertheless dismissed the application as an abuse of process. This is the second proceeding before a court to review the decision of the RRT. There is no reason why the issues the applicant now seeks to raise in this Court could not have been raised in the Federal Court. The judicial review application in this Court, like the judicial review application in the Federal Court, is vague and unhelpful in its terms. The applicant has not complied with this Court's order to file an amended application with particulars and to file any evidence by a certain date. The written submissions filed by the applicant are in part inconsistent with the facts. Those circumstances lead me to the view that the applicant is using this Court's process in order to remain in Australia for an extended period rather than to advance a serious legal dispute with the decision of the RRT.

14. Accordingly, if I had not dismissed the application as incompetent I would have dismissed the application as an abuse of process pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

15. On the question of costs, Ms Leahy seeks an order for costs on an indemnity basis fixed in the sum of $3,200. The applicant tells me that he is unable to pay costs because of his financial circumstances. Impecuniosity is not a reason for the Court to refrain from making costs order. It is appropriate that costs should follow the event in this case. I have made observations in my reasons about my view of the applicant as an abuse of process. If I had dismissed the application because it was an abuse of process an indemnity costs order would reasonably have been called for. However, my observations on that issue are obiter because I had previously found that I had no jurisdiction to further entertain the application. In those circumstances, I do not consider it appropriate to award costs on an indemnity basis. The costs actually incurred on behalf of the Minister are of the order of $3,200. I will assess costs in this matter on a party and party basis. On that basis, a costs order in the sum of $2,500 is properly called for.

16. I will order that the objection to competency is upheld. The application for judicial review filed on 28 January 2004 is dismissed summarily as incompetent. The applicant is to pay the costs and disbursements of and incidental to the respondent, fixed in the sum of $2,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 September 2004
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