NAJZ v Minister for Immigration

[2007] FMCA 1392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1392

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal.

Federal Magistrates Court Rules 2001, rr.13.03A, 13.10, 44.12
Federal Magistrates Court Rules 2001, sch.1

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456
SZASP v Minister for Immigration & Citizenship [2007] FCA 771

Applicant: NAJZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2041 of 2007

Judgment of: Cameron FM

Hearing date: 15 August 2007

Date of Last Submission: 15 August 2007

Delivered at: Sydney

Delivered on: 15 August 2007

REPRESENTATION

There was no appearance by the applicant.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.13.10 the application be dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2041 of 2007

NAJZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application dated 2 July 2007 the applicant seeks review of a decision of the Refugee Review Tribunal which is expressed in his application to be dated 12 June 2007.  Annexed to the affidavit of Nicola Johnson sworn 20 July 2007 is a copy of the Tribunal decision signed on 6 June 2007 and which, judging by the letter to the applicant forming part of that annexure, was sent to him on 12 June 2007. 

2. It is now 12.15 and the matter was listed for hearing at 11.30.  When the matter was called at approximately 11.33 there was no appearance by the applicant.  The matter was adjourned until 12.05 in the event that the applicant was simply running late and also in order that enquiries could be made as to the applicant's whereabouts. 

   RECORDED  :   NOT TRANSCRIBED

3. During the adjournment Mr Dooley on behalf of the Minister, he tells me, made enquiries of his office to determine whether the applicant had made any contact with his office and the result was in the negative.  During the adjournment my Associate contacted the Registry of the Court at Queen's Square and the applicant had not presented himself there.  My Associate also called the matter on the ground floor of the John Maddison Tower and on level 7 of the John Maddison Tower.  We are currently in Court 6A on level 6 of the John Maddison Tower.  No response was made to the calls made by my Associate and when the matter was called on again at 12.06 and it was called outside the Court there was no appearance by the applicant. 

4. The Minister applied pursuant to r.13.03A(e) that the Court proceed with the hearing of the application notwithstanding the applicant's failure to attend today. That application was granted and the Minister has read the affidavit of Nicola Johnson sworn 20 July 2007 and sought orders that the proceedings be dismissed on the basis that, amongst other things, they are an abuse of the processes of the Court. The response filed by the Minister asserts that the application for review filed by the applicant does not establish any jurisdictional error on the part of the Tribunal, in any event does not raise an arguable case and further has no reasonable prospects of success, is frivolous or vexations and, as I said, is an abuse of process.

5. It is worth considering the chronology associated with the applicant's claim to be entitled to a protection visa.  That chronology is annexure A to Ms Johnson's affidavit and relevantly is as follows:

   a)on 9 March 2001 the Minister's delegate refused the applicant's application for a protection visa;

   b)on 5 February 2003 the Tribunal's first decision was handed down;

   c)on 21 October 2003 Driver FM dismissed the applicant's application for judicial review of that 2003 decision of the Tribunal;

   d)on 13 February 2004 Moore J dismissed the applicant's appeal from Driver FM's decision;

   e)on 9 November 2005 the High Court dismissed the applicant's application for special leave to appeal;

   f)on 3 November 2006 O'Sullivan FM dismissed a further application by the applicant for judicial review of the Tribunal's 2003 decision;

   g)on 14 February 2007 Black CJ dismissed an appeal from O'Sullivan FM's decision;

   h)on 8 March 2007 the applicant lodged a second application to the Tribunal to review the delegate's decision;

   i)on 6 June 2007 the Tribunal's decision referred to at [1] above was signed; and

   j)on 3 July 2007 these proceedings were commenced.

6. The decision of the Tribunal which is the subject of these proceedings was that it had no jurisdiction to consider for a second time the delegate's decision.  At page 2 of its decision the Tribunal refers to the fact that the Tribunal had previously affirmed the delegate's decision on 3 February 2003 and that on 8 March 2007 the applicant lodged a further application for review of the delegate's decision.  In the “Findings and Reasons” found at page 3 of its decision the Tribunal said this:

   The decision of 9 March 2001 is an RRT-reviewable decision.  However, the applicant has previously lodged an application for review of the same decision.  The Tribunal accepted that application and conducted a review.  The Tribunal has therefore already discharged its functions under the Act to review the decision.  As mentioned earlier, the applicant has unsuccessfully sought judicial review of the Tribunal's decision …

   As the Tribunal has already discharged its functions under the Act to review the delegate's decision of 9 March 2001, it no longer has jurisdiction in relation to that decision.

7. The applicant seeks judicial review of that decision of the Tribunal and the question arises whether the Tribunal's decision is affected by jurisdictional error.  It is significant that no further decision of a delegate of the Minster has been made and that the applicant is seeking a second review of the only relevant decision which relates to his application for a protection visa. 

8. Once the Tribunal makes a decision on an application for review of a decision of the Minister's delegate not to grant a protection visa, the Tribunal has no power to hear a further application for a review of that decision.  Such is made clear by authorities such as Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456; and SZASP v Minister for Immigration & Citizenship [2007] FCA 771.

9. In the circumstances the Tribunal's decision was the only one which was truly open to it.  No jurisdictional error has been demonstrated by reason that the Tribunal concluded that it was functus officio.  It properly concluded that it was functus officio.

10. The next question to consider is whether it is appropriate to dismiss the application under r.44.12 on the basis that there is no arguable case or under r.13.10 on the basis that there are no reasonable prospects of success, the proceeding is frivolous or vexations or the proceeding is an abuse of the process of the Court. In light of the chronology which I have rehearsed, I am satisfied that these proceedings are an abuse of the process of the Court. In not dissimilar circumstances, Moore J made such a finding in SZASP's case where at [22] he described each of the proceedings before him as an abuse of process, including one where the applicant had applied to the Tribunal to obtain a second review of the delegate's decision. 

11. Fortified by his Honour's conclusion in that case and given the lengthy litigation history disclosed in the affidavit of Ms Johnson, I am satisfied that not only do these proceedings have no prospects of success on the basis that there is no arguable case but also that they are vexatious and an abuse of the process of the Court. I will therefore dismiss them pursuant to r.13.10.

    RECORDED  :   NOT TRANSCRIBED

12. As the Minister has been successful in these proceedings he has sought an order for his costs. Mr Dooley on behalf of the Minister has sought an award of $2,000 which he advises me represents the Minister's solicitor and client costs. In the circumstances of a show cause hearing such as this, the Minister would be entitled under para.1(b) of pt.2 of sch.1 of the Rules of Court to an amount of $2,500. In circumstances where the rules do provide a greater amount than is claimed and in circumstances where I have found that the proceedings had no reasonable prospects of success, were vexatious and an abuse of the process of the Court, I am satisfied that it is appropriate to award the Minister the amount of $2,000 sought by him, there also being nothing in the conduct of this case which would suggest the Minister would not be entitled to an order in the first place.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date: