SZGRG v Minister for Immigration & Anor [2009] FMCA 62 (4 February 2009)

Federal Magistrates Court of Australia

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SZGRG v Minister for Immigration & Anor [2009] FMCA 62 (4 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 62

MIGRATION – Application for review of decision of Refugee Review Tribunal – Tribunal decision subject to judicial review in FMCA – No jurisdiction to entertain further application – res judicata – issue estoppel – application dismissed.

Migration Act 1958 (Cth), s.477 Federal Magistrates Court Rules 2001, r.13.10(a)

Minister for Immigration and Citizenship v SZKKC; Minister for Immigration and Citizenship v SZJMA [2007] FCAFC 105 SZGRG v Minister for Immigration and Citizenship [2008] FMCA 585 SZGRG v Minister for Immigration and Citizenship [2008] FCA 1326 Somanadar v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 Thayananthan v Minister for Immigration and Multicultural Affairs [2003] FCA 1054; (2003) 132 FCR 222 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 395

Applicant:

SZGRG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1 of 2009

Judgment of:

Nicholls FM

Hearing date:

4 February 2009

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

4 February 2009

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

None

Appearance for the Respondents:

Ms D Attard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application made on 2 January 2009 is dismissed pursuant to s.477 of the Migration Act 1958 (Cth).
(2) The applicant pay the first respondent’s costs set in the amount of $1,000.
(3) The applicant not file any further application in relation to the Tribunal decision signed on 2 November 2006, and handed down on 21 November 2006, without first obtaining leave of this Court.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1 of 2009

SZGRG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

(As Corrected)

1. I have before me an application made on 2 January 2009 pursuant to the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 2 November 2006, and handed down on 21 November 2006, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
2. I also have before me an application seeking summary dismissal of the applicant’s application. This application was made by way of response filed on 13 January 2009 by the first respondent, and was pressed before the Court today by the solicitor for the first respondent.
3. The following material has been put before the Court in addition to the applications:
   1. Affidavit of the applicant made on 2 January 2009, with annexure.
   2. Affidavit of Angela Margaret Nanson made on 16 January 2008, with annexures.
   3. The affidavit of Denise Attard made on 30 January 2009 with annexures, and in particular the annexure being a copy of the Tribunal’s record relating to the handing down of its decision to the applicant, and the record revealing that the applicant was served in person with the Tribunal’s decision on 21 November 2006.
4. I note the chronology relevant to this matter is set out in the affidavit of Ms Nanson, and for the purposes of this judgment I adopt that chronology.
   • “3. On 11 December 2006, the applicant commenced proceedings for review of the decision in the Federal Magistrates Court proceedings No SYG3692 of 2006. On 7 May 2007, an amended application was filed in the name of the applicant. Annexed marked A is a copy of that amended application.
   • 4. The matter came before Federal Magistrate Lloyd-Jones for hearing on 26 November 2007. On 16 May 2008, Reasons for Judgment and orders were given dismissing the application with costs. Annexed marked B is a copy of the Reasons for Judgment of Lloyd-Jones FM: SZGRG v Minister for Immigration [2008] FMCA 585.
   • 5. On 4 June 2008, a Notice of Appeal was filed in the Federal Court of Australia in the name of the applicant proceedings No. NSD821/2008. Annexed marked C is a copy of that Notice of Appeal.
   • 6. On 11 August 2008, the matter came before Graham J for hearing. On that day his Honour delivered Reasons for Judgement dismissing the appeal with costs. Annexed marked D is a copy of the Reasons for Judgment of Graham J: SZGRG v Minister for Immigration [2008] FCA 1326.”
5. I emphasise, however, the following:
   1. The Tribunal decision was handed down in November 2006, the applicant receiving a copy of that decision in person.
   2. The applicant sought judicial review before this Court on a previous occasion in December 2006. That matter was heard and considered by Lloyd-Jones FM.
   3. The applicant then appealed to the Federal Court of Australia, and that appeal was dismissed by Graham J in August 2008.
6. Bearing in mind what was said by a Full Federal Court in Minister for Immigration and Citizenship v SZKKC; Minister for Immigration and Citizenship v SZJMA [2007] FCAFC 105, I note that from the material before the Court the applicant did personally receive the Tribunal’s decision in November of 2006. Given the provisions of s.477 of the Act which require an application in relation to that decision to have been made in this Court within 28 days of receipt of the decision, the application was clearly made well outside that time. The Court therefore lacks jurisdiction to hear the application as a result.
7. I note also that no application been made for any extension of time as provided for in s.477(2) of the Act. Even if such an application had been made, the extension would have been dependent on and would have required the application to have been filed or made in this Court in a period of 56 days additional to the initial 28 days. The application has not been made within that time.
8. Put simply, therefore, I can only agree with the first respondent that this Court lacks jurisdiction to proceed further with this matter and that the matter should be dismissed today.
9. I gave the applicant some opportunity today, and I am mindful that the applicant’s initial submission to me today was that he was unable to address the issue of jurisdiction. After explaining the situation to him (and giving him a short opportunity to contact lawyers whom he said had assisted him in his application) when opportunity was provided to the applicant he sought to re-agitate what he believed to be errors in the Tribunal’s decision. But as I explained to the applicant, the critical issue was whether this Court had the jurisdiction to consider those matters that he sought to re-agitate. Unfortunately for the applicant, the answer is that in light of s.477 of the Act, and the relevant authorities to which I have already referred, I cannot see that this Court has the jurisdiction to allow this matter to proceed, and on that basis the application made on 2 January 2009 is dismissed.
10. In addition, however, I also note from the material put before the Court that the same Tribunal decision that the applicant has sought to put before the Court now has already been the subject of comprehensive judicial review proceedings both before this Court and the Federal Court. In particular I note Annexure B to the affidavit of Ms Nanson being the judgment of Lloyd-Jones FM in SZGRG v Minister for Immigration and Citizenship [2008] FMCA 585, and the conclusion by Lloyd-Jones FM that there was no jurisdictional error in the same Tribunal decision. That judgment went on appeal to the Federal Court. I note here Annexure C to the affidavit of Ms Nanson, being the judgment of Graham J in SZGRG v Minister for Immigration and Citizenship [2008] FCA 1326. Graham J, amongst other things, described the previous judgment as a “comprehensive review of the Tribunal’s decision”, and found that there was no jurisdictional error in the Tribunal’s decision.
11. What the applicant has sought to put before this Court today by way of his application is in similar terms to what was put before Lloyd-Jones FM. I note that there was an amended application before Lloyd-Jones FM which appears to have been an expansion of the grounds of the original application. I cannot see that there is anything new in the grounds put before the Court now. The principles of res judicata and issue estoppel, do apply to administrative law matters, and apply where an applicant raises issues on an application for review which have already been the subject of consideration before the Court: Somanadar v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 at [45], Thayananthan v Minister for Immigration and Multicultural Affairs [2003] FCA 1054; (2003) 132 FCR 222 at [33], Daniel v Minister for Immigration and Multicultural and Indigenous Affairs 2004] FCA 395. Certainly res judicata would apply to prevent the matter proceeding any further. Even if this Court did have jurisdiction, which I cannot find that it does, and bearing in mind r.13.10(a) of the Federal Magistrates Court Rules 2001 and in light of the material that is before the Court to which I have referred, I cannot see that there would be any reasonable prospect of the applicant successfully prosecuting his application.
12. A third basis, in any event, is that a Federal Court Judge sitting on appeal from this Court has found that the Tribunal’s decision did not contain any jurisdictional error such that the judgment and orders made by Lloyd-Jones FM should be overturned. The result of both what was said by the learned Federal Magistrate, and by his Honour on appeal, is that there is no jurisdictional error in that same Tribunal decision. I take the view that I am bound by what is said in the Federal Court in relation to these matters.
13. Even if therefore the Court did have jurisdiction, it would be a further basis on which to dismiss the application today in that after a full judicial review, and review in the Federal Court on appeal, the Federal Court on appeal has concluded that there is no jurisdictional error on the part of the Tribunal in its decision. I am bound by that conclusion. It would be futile in those circumstances, even if this Court did have jurisdiction, to have allowed the matter to have proceeded to a hearing which would be conducted for the purpose of determining whether or not there was jurisdictional error in the Tribunal decision.
14. For the sake of clarity, this application is dismissed on the basis that this Court lacks jurisdiction pursuant to s.477 of the Act. But I also note that even if this Court did have jurisdiction, on what is before me today, certainly as a result of what was said in the Federal Court, I would have dismissed the application as having no reasonable prospect of success for the reasons that I have already set out. It would have been futile to have permitted the matter to go any further. In all, therefore, this application is dismissed.
15. It is appropriate in the circumstances (relating to the making of this application now – after judicial review of the same Tribunal decision) which have remained unexplained before this Court that an order also be made that the applicant not make further applications to this Court in relation to the same Tribunal decision without first obtaining leave of this Court.
16. The first respondent has also sought costs in the amount of $1,000. These being the costs of reviewing the file, preparing the response and affidavits, drafting correspondence, and attendance at Court today. I bound to look at what is appropriate in the circumstances, and to act reasonably. In my view, the first respondent has been put to some expense in responding to the application, and it is appropriate that a costs order be made. The applicant has stated that he does not want a costs order to be made. With respect, that is not a sufficient reason against the making of a costs order.
17. As to the amount sought, I am satisfied that the amount sought is within the relevant schedule to the Rules of this Court. In any event, I take the view that I am not strictly bound by what is set out in that schedule. Given the amount of work that has been done in responding to the application, I am satisfied that $1,000 is a reasonable amount in all the circumstances, and will make that order accordingly.

I certify that the preceding 17Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !seventeenseventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 10 February 2009

CORRECTIONS

1. Between paragraphs 4 and 5 – insert quoted text.