NAPF v Minister for Immigration
[2008] FMCA 249
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 249 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal functus officio – change in circumstances in country of nationality does not give the Tribunal renewed power to review the delegate’s decision – as the Tribunal did not have jurisdiction to entertain the application for review, it did not err by not inviting the applicant to appear before it before making its decision. |
| Migration Act 1958, s.422B Federal Magistrates Court Rules 2001, rr.13.10, 44.12 |
| NAPF v Minister for Immigration [2004] FMCA 399 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 |
| Applicant: | NAPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 32 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 February 2008 |
| Date of last submission: | 15 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.13.10 of the Rules of Court the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 32 of 2008
| NAPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 12 December 2007.
The applicant has claimed to fear persecution in Bangladesh. The basis of that fear is set out in paragraph 3 of the judgment of Barnes FM in NAPF v Minister for Immigration [2004] FMCA 399. In para.3 her Honour says this:
The applicant claimed to fear persecution by reason of his political opinion or membership of a particular social group in Bangladesh arising from a claim to have been involved in the founding and activities of the Sirajdikhan Humanitarian Organisation. This was described by the applicant as a secular humanitarian organisation founded in January 1990 which comprised nine friends who were committed to social activities and wanted to improve the situation in their village. He claimed that their goal was to encourage women to cast votes properly, and to stop child marriages and polygamy.
The Tribunal concluded that it did not have jurisdiction to entertain the applicant's application for review.
The matter is before the Court today on the applicant’s application that the respondents show cause why relief should not be granted to the applicant.
In the application the following grounds are pleaded:
(1)The tribunal failed to act according to migration law and regulation.
(2)The tribunal did not apply the correct laws when consider this matter.
(3) The tribunal misinterpreted the migration laws.
(4)The tribunal failed to exercise its jurisdiction under the migration act.
Today the applicant also submitted that he had been denied an opportunity to appear before the Tribunal and so alleges breaches of the natural justice provisions in Pt.4 Div.7 of the Migration Act 1958 (“Act”). The first respondent submits that the applicant has no arguable case and, in any event, has brought an application which is an abuse of process.
At a hearing to determine whether an order to show cause should be made, the order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of the cause of action is clearly demonstrated or the claim is groundless or there is a high degree of certainty about the outcome. Under the Rules of Court the proceedings may also be dismissed if they have no reasonable prospect of success, are frivolous or vexatious or are an abuse of process.
From the documents which are in evidence in these proceedings the following chronology of the applicant’s pursuit of a protection visa emerges:
a)On 2 August 2001 the applicant applied for a protection visa;
b)On 23 November 2001 the Minister’s delegate refused that application;
c)On 11 April 2003 the Tribunal affirmed the decision of the delegate;
d)On 19 March 2004 Barnes FM dismissed the applicant’s application for judicial review of the Tribunal’s decision;
e)On 1 July 2004 Madgwick J dismissed the applicant’s appeal from the decision of Barnes FM;
f)A subsequent application for special leave to appeal to the High Court was deemed to have been abandoned on 4 July 2005;
g)On 6 October 2005 Scarlett FM dismissed a further application for judicial review of the Tribunal’s decision of 11 April 2003;
h)On 27 March 2007 Moore J dismissed the applicant’s appeal from the decision of Scarlett FM;
i)On 13 November 2007 the applicant made a further application to the Tribunal for review of the delegate’s decision;
j)On 12 December 2007 the Tribunal found that it did not have jurisdiction to entertain that application for review; and
k)On 8 January 2008 the applicant commenced these proceedings seeking judicial review of the Tribunal’s decision signed on 12 December 2007.
The basis of the Tribunal’s decision that it had no jurisdiction was that it had already discharged its function. In relation to the Tribunal’s conclusion that it was functus officio, it is important to keep in mind that the delegate’s decision was dated 23 November 2001 and that the Tribunal made its original decision in respect of that decision of the delegate on 11 April 2003. There has been no further decision by a ministerial delegate.
That being so, the Tribunal discharged its function when it made its decision of 11 April 2003. Having done so, it does not have jurisdiction to entertain a further application for review of a delegate’s decision. The authorities make that clear and have done so for many years: 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 SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989.
Today the applicant also says that the circumstances in Bangladesh have changed. But any change in circumstances asserted by the applicant does not give the Tribunal renewed power to review the original decision of the delegate.
In SZASP v Minister for Immigration & Citizenship [2007] FCA 771 Moore J said at [4]:
It is necessary to first say something about the applicant’s attempt to seek a second review of the delegate’s decision in the Tribunal. The Tribunal’s conclusion that it no longer had jurisdiction to review the delegate’s decision, having already discharged its functions under the Act to review the delegate’s decision, was correct … The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review.
As to the allegations made today arising out of the fact that the Tribunal did not invite the applicant to appear before it before making its decision of 12 December 2007, the natural justice hearing rule requirements codified in the Act by virtue of s.422B of the Act are predicated on the Tribunal having jurisdiction to entertain the application which is before it. I have already found that the Tribunal did not have jurisdiction because it was functus officio. That being so, there was no call for the Tribunal to invite the applicant to appear before it and no jurisdictional error is demonstrated because it did not do so.
For all these reasons, it is clear to me that the Tribunal made no jurisdictional error in its finding that it was functus officio or because it did not invite the applicant to attend before it to give evidence and present arguments. Consequently, the application is not arguable.
However, regardless of whether the applicant’s case is an arguable one or not, there remains the first respondent’s submission that the application is an abuse of process. In this regard, I refer again to Moore J’s decision in SZASP’s case. As the passage already quoted demonstrates, one of the applicants in those proceedings, which involved several applicants, had sought a second Tribunal review in respect of a decision of the Minister’s delegate. That is to say, the circumstances in that case were relevantly identical to the circumstances in this case. His Honour found at [22] that such circumstances amounted to an abuse of process.
In my view, the applicant does not have an arguable case for the relief claimed and the proceedings are an abuse of the process of the Court. Therefore, although the respondent expressly only seeks dismissal pursuant to r.44.12, because he has also raised the issue of the proceedings being an abuse of process, which I find them to be, the application will be dismissed pursuant to r.13.10.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 10 March 2008
6
2