NAUE v Minister for Immigration
[2008] FMCA 912
•2 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAUE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 912 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal decision previously found to be valid and applicant returning repeatedly to the Tribunal – Tribunal finding it lacked jurisdiction – summary dismissal of show cause application as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 65, 411, 412, 414, 417 Migration Regulations 1994 (Cth) |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 NAUE v Minister for Immigration [2004] FCA 63 NAUE v Minister for Immigration [2004] FCAFC 103 NAUE v Minister for Immigration [2005] HCATrans 944 NAUE v Minister for Immigration & Anor [2006] FMCA 262 NAUE v Minister for Immigration & Anor [2006] FCA 856 NAUE v Minister for Immigration & Anor [2007] HCATrans 31 SZAQW v Minister for Immigration [2006] FCA 1332 SZASP v Minister for Immigration [2007] FCA 771 SZBCE v Minister for Immigration [2006] FMCA 1897 SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 SZBRB v Minister for Immigration [2007] FCA 1452 SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 SZCKB v Minister for Immigration [2006] FMCA 804 SZIHQ v Minister for Immigration [2006] FMCA 496 SZIIV v Minister for Immigration [2006] FMCA 322 |
| Applicant: | NAUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1256 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Regidor Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review any migration decision relating to the applicant’s protection visa application made on 4 September 2001, including the decision of the delegate made on 14 June 2002, the various Tribunal decisions and the notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1256 of 2008
| NAUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 16 May 2008 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 23 April 2008. The Tribunal found that it did not have jurisdiction in the matter.
The show cause application asserts that the Tribunal failed to act according to migration law and the regulations, that it failed to accord natural justice and that it failed to consider changed circumstances in the applicant's home country of Bangladesh. The application is supported by an affidavit which makes submissions and which I received as a submission. A copy of the Tribunal decision is annexed to the affidavit and that is before me. I also received as evidence an affidavit made on 18 June 2008 by Peter Snell, which details the applicant's litigation history.
The Minister responded to the application on 24 June 2008, seeking that the application be summarily dismissed on the basis of res judicata, issue estoppel, Anshun estoppel or on the basis that the application has no reasonable prospect of success, is frivolous or vexatious and is an abuse of the Court's process. I decided to deal with the Minister's response today and to that end I also ordered an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). (“the Federal Magistrates Court Rules”)
The background to this matter is detailed in Mr Snell's affidavit but is also conveniently summarised in the Tribunal decision as follows:
The Applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 4 September 2001. The delegate decided to refuse to grant the visa on 14 June 2002 and notified the Applicant of the decision and his review rights by letter dated the same day. The Applicant sought review of the decision by application lodged with the Tribunal on 1 July 2002. The Tribunal, differently constituted, affirmed the delegate’s decision on 11 June 2003 and the decision was handed down on 8 July 2003 (RRT Reference No. N02/43260).
The Applicant unsuccessfully sought judicial review of the Tribunal’s decision. An application lodged on 26 June 2003 was dismissed on 6 February 2004: see NAUE v MIMIA [2004] FCA 63. An appeal from that decision was dismissed on 6 May 2004: see NAUE v MIMIA [2004] FCAFC 103; and an application to the High Court for special leave was withdrawn on 1 February 2005 (High Court Reference No. S199/2004). A further application was lodged on 21 February 2005 in the High Court for special leave, however that application was dismissed on 17 November 2005: see NAUE v MIMIA [2005] HCATrans 944. On 7 December 2005, the Applicant commenced fresh proceedings seeking review of the same decision. That application was dismissed on 27 February 2006: see NAUE v MIMA & Anor [2006] FMCA 262. An appeal from that decision was also dismissed on 14 June 2006: see NAUE v MIMA & Anor [2006] FCA 856. On 11 July 2006 the Applicant lodged a third application to the High Court for special leave. That application was refused on 8 February 2007: see NAUE v MIMIA & Anor [2007] HCA Trans 31.
On 9 March 2007 the Applicant lodged a second application with the Tribunal for review of the delegate’s decision. On 24 April 2007 the Tribunal decided that it did not have jurisdiction in the matter as the Tribunal had already discharged its functions under the Act to review the delegate's decision (RRT Reference No. 071240533).
On 14 May 2007, the Applicant sought judicial review of the Tribunal’s decision of 24 April 2007. However, that application was subsequently withdrawn on 14 September 2007 (Federal Magistrates Court Reference No. SYG1517/2007).
The Applicant has also unsuccessfully sought ministerial intervention under s.417 of the [Migration] Act [1958 (Cth) (“the Act”)] .
On 14 November 2007, the Applicant lodged a third application with the Tribunal for review of the delegate’s decision and on 29 November 2007 the Tribunal, differently constituted, decided that it did not have jurisdiction in the matter as it had already discharged its functions under the Act (RRT Reference No. 071865170).
Despite these three earlier decisions by the Tribunal, the Applicant proceeded to lodge a fourth application for review of the delegate’s decision on 15 April 2008.
The Tribunal had to consider whether it had any jurisdiction to review the delegate's decision in circumstances where an earlier decision of the Tribunal on 11 June 2003 was found to be a valid exercise of the Tribunal's powers (see NAUE v Minister for Immigration [2004] FCA 63). That decision was affirmed on appeal by the Full Federal Court in NAUE v Minister for Immigration [2004] FCAFC 103 and that decision is binding both upon me and the Tribunal. The High Court refused special leave (NAUE v Minister for Immigration [2005] HCATrans 944).
In 2006 I dealt with a second attempt by the applicant to have the first Tribunal decision judicially reviewed (NAUE v Minister for Immigration & Anor [2006] FMCA 262). My decision was affirmed on appeal (NAUE v Minister for Immigration [2006] FCA 856). The High Court refused special leave (NAUE v Minister for Immigration [2007] HCATrans 31).
The applicant then adopted the tactic of returning to the Tribunal to attempt it to have the Tribunal revisit the first Tribunal decision. He made three such attempts, all with the same outcome. The legal principles relating to those attempts are accurately summarised by the Tribunal in paragraphs 10 to 12 of its decision. I incorporate those paragraphs into this judgment:
The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and start when the applicant is notified of the decision in accordance with the legislation in force at the relevant time.
Where the Tribunal has received a valid application for review of an RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, the decision is no longer an RRT-reviewable decision under s.411: SZBRB v MIAC & Anor [2007] FMCA 1093 at [30]; SZBRB v MIAC [2007] FCA 1452 at [21]; and SZBWJ & Ors v MIAC & Anor [2008] FMCA 164 at [41]. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMA [2006] FMCA 322. Even if circumstances in an applicant's country have changed, this does not provide a basis for the Tribunal to accept a second review application, or to reconsider the delegate's decision: see MIMA v Thiyagarajah (2000) 199 CLR 343 at [30], although it may potentially be a basis on which the Minister might permit lodgement of a further Protection visa application under s.48B of the Act.
The proposition that the Tribunal cannot accept a second application for review of the same RRT-reviewable decision has been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. It may be observed that many of these applications have been found to be an abuse of process, instituted for the purpose of prolonging the applicant’s stay in Australia: see SZASP v MIAC [2007] FCA 771; SZAQW v MIMA [2006] FCA 1332; SZIHQ v MIMA [2006] FMCA 496; SZIIV v MIMA [2006] FMCA 322; SZCKB v MIMA [2006] FMCA 804 and SZBCE v MIMA [2006] FMCA 1897.
It is undoubtedly correct that the Tribunal had no jurisdiction to further review the delegate's decision, that decision already having been reviewed by the Tribunal validly. The repeated attempts by the applicant to have the Tribunal revisit its first decision, which was validly made, abused the Tribunal's process. The applicant made an abortive attempt to seek judicial review of the second Tribunal decision in this Court but he discontinued it on 14 September 2007. The outcome in that case would have been the same as in this case if the proceedings had not been discontinued. The making of repeated applications to this Court to review decisions of the Tribunal that have already been found to have been validly made, or that it lacks jurisdiction in circumstances where the correctness of that legal principle is unquestionable, and should be known to the applicant to be unquestionable, is frivolous, vexatious and an abuse of this Court's process.
I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. An abuse of process having been found, it would be open to the minister to seek costs on an indemnity basis. However, the Minister's solicitor was instructed to seek costs in accordance with the Federal Magistrates Court scale, in the sum of $1,000. I understand the Minister's actual costs are significantly in excess of that amount. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I will further order that no further application by this applicant to review any migration decision relating to the applicant’s protection visa application made on 4 September 2001, including the decision of the delegate made on 14 June 2002, the various Tribunal decisions and the notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 July 2008
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