SZDCT v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal from a decision of the Federal Magistrates Court given on 24 April 2006 (SZDCT v Minister for Immigration & Multicultural Affairs [2006] FMCA 641). Federal Magistrate Scarlett held that the application filed on 22 March 2006 in that Court was out of time under the provisions of s 477 of the Migration Act 1958 (Cth) having regard to the 84-day maximum possible period in which such an application could have been filed, following the enactment and proclamation of the Migration Litigation Reform Act 2005 (Cth) and the operation of cl 42 of Schedule 1 of that Act. 2 The applicant sought leave to challenge the decision of the Refugee Review Tribunal made on 3 February 2004 and handed down on 25 February 2004. He had already sought judicial review of that before Raphael FM (SZDCT v The Minister for Immigration [2004] FMCA 957). Federal Magistrate Raphael held that the issue which the applicant wished to agitate, namely that the Tribunal had made an error concerning the possibility of him relocating either within the State of Chennai, or to some other State in India, was such as might be challenged on judicial review. 3 The applicant had pointed out to his Honour and to each of the courts in which he has brought his application that the Tribunal had found that: 'The Tribunal accepts that the applicant has suffered harassment from Hindu Nationalists in Chennai and accepts he has suffered a short period of detention because of an altercation over the Indian flag. However, the Tribunal notes that the applicant's evidence, that the area he lived in...' 4 His Honour found at [10] that the Tribunal had made no error in its application of the relocation principle which had been explained in the decision of the Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. His Honour found that the applicant had failed to indicate any jurisdictional error into which the Tribunal may have fallen and thus dismissed the application at [11]. 5 The applicant appealed to this Court, Gyles J dismissed that appeal (SZDCT v Minister for Immigration and Multicultural Indigenous Affairs [2005] FCA 329.) His Honour held that in order to set aside the decision of the Federal Magistrates Court, he would need to find an appealable error in the reasons of the Federal Magistrates Court, or a failure to deal with something that should have been dealt with. His Honour held that the applicant had not been able, in that appeal, to point to either [6]. He noted that the issue of relocation was at the heart of the case of the applicant and was dealt with by the Tribunal and by Raphael FM. Both found that the relocation principle in the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, had been correctly applied. 6 His Honour said that whatever one's views might be about the position of Muslims in India, he was satisfied that there had been no error disclosed in the manner in which the Federal Magistrates Court dealt with the appeal and unfortunately from the view of the applicant, that meant there could be no order remitting the matter to the Tribunal. On 9 March 2006, Hayne and Crennan JJ dismissed an application for special leave to appeal (SZDCT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 123) saying that: 'The decisions in the Courts below turned on the Refugee Review Tribunal's finding that the applicant could reasonably be expected to relocate to another region in India. No jurisdictional error is apparent in this conclusion. We see no reason to doubt the correctness of the decision of Gyles J.' 7 The applicant then brought proceedings before Scarlett FM which his Honour dismissed on the basis that they were plainly out of time under s 477 of the Migration Act 1958 (Cth). His Honour also held that the proceedings that had been brought before him had already been heard and decided and that this was an attempt to re-litigate what had already been decided. I am of the opinion that his Honour's dismissal of the application on both grounds was correct. It follows that there is no arguable case which could be the subject of a grant of leave to appeal and I am also satisfied that there has been no injustice done to the applicant. 8 The applicant been able fully to present and argue his case before the Tribunal and before each Court on which he sought to challenge the Tribunal's decision in the first round of litigation which he brought. These proceedings are plainly an abuse of the process of the Court for the reasons that I gave in SZATR v Minister [2006] FCA 986. 9 The submissions that were filed by the applicant on 5 July 2006 also seek to challenge the delegate's decision which had been the subject of his application to the Tribunal for review. That was plainly incompetent: see SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224 and the decision of Heydon J refusing leave to appeal in that matter, SZGGS v MIMA [2006] HCA Trans 352; see also SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 85, and Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10. 10 Accordingly, I am of opinion the application should be dismissed with costs which I fix in the sum of $1,200. I order that the applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 3 February 2004 and handed down on 25 February 2004 or the decision of the delegate of the respondent dated 6 August 2003 refusing to grant a protection visa without the leave of a Judge of this Court. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.