NBJA v Minister for Immigration
[2007] FMCA 1703
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBJA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1703 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh bringing further application to review a decision of the Refugee Review Tribunal that had already been the subject of judicial review. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – no arguable case for relief claimed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412, 424A Federal Magistrates Court Rules 2001 r.44.12 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322 NBJA v Minister for Immigration & Anor [2005] FMCA 1759 NBJA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1245 NBJA v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 283 |
| Applicant: | NBJA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2404 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 September 2007 |
| Date of last submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Moloney |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed under Rule 44.12 because the application has not raised an arguable case for the relief claimed.
The Application is dismissed as an abuse of process.
No further application for review of decisions of the Refugee Review Tribunal signed on 12 August 2004 and handed down on 2 September 2004 or signed on 9 July 2007 are to be filed in this Court without the leave of a Federal Magistrate.
The Applicant is to pay the First respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2404 of 2007
| NBJA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Bangladesh, who is asking the Court for three orders:
i)A writ of certiorari quashing the decision of the Refugee Review Tribunal, finding that it had no jurisdiction to deal with his application for review.
ii)A writ of mandamus directed to the Refugee Review Tribunal, requiring it to determine his application for review according to law.
iii)An order that the Minister pay his costs.
Applicant’s Grounds of Review
He relies on three grounds:
a)That the Tribunal erred when holding that the original Refugee Review Tribunal discharged its statutory obligations and that it therefore had no jurisdiction to consider his application for review.
b)That the situation in his home country has changed and, in the same ground, that the Tribunal failed to comply with s.424A of the Migration Act.
c)That the Tribunal's decision about its jurisdictional inability to consider his application is a jurisdictional error.
First Respondent’s Grounds for Summary Dismissal
The First Respondent, Minister for Immigration & Citizenship, has brought an interlocutory application, asking for summary dismissal of the Applicant's application. There are four grounds:
a)That the application to review a decision of the Refugee Review Tribunal, dated 9th July 2007 and/or 12th August 2004, has been made outside the prescribed time limit in s.477 of the Migration Act, and that the Court has no jurisdiction to review the decision.
b)That the Applicant has no reasonable prospects of successfully prosecuting the claim for relief.
c)That the claim for relief is frivolous or vexatious.
d)That the claim for relief is an abuse of the process of the Court, because the Applicant has previously unsuccessfully applied to the Court to review the Refugee Review Tribunal dated 12th August 2004 and has unsuccessfully appealed to the Federal Court and the High Court.
The first ground, relating to an application being made outside the prescribed time limit, has not been pressed. In respect of the second, third and fourth grounds, the Respondent Minister submits that there is no failure by the Tribunal to comply with statutory requirements, in particular, s.424A of the Migration Act. The Minister submits that there is no reason to doubt that the decisions of Jayasinghe v Minister for Immigration & Ethnic Affairs[1] and SZIIV v Minister for Immigration & Multicultural Affairs[2] were correctly decided – those being cases upon which the Tribunal relied.
[1] (1997) 76 FCR 301
[2] [2006] FMCA 322
In respect of the second ground raised by the Applicant, the Minister submits that this is a request for merits review and does not provide any legal basis for the Tribunal to accept the second review application. Once the Tribunal has fulfilled its statutory duty to review an application pursuant to s.414 of the Migration Act, it is rendered functus officio and does not have the jurisdiction to consider the same application again.
Applicant’s Litigation History
The First Respondent Minister relies on an affidavit of Scott Crawford Maloney, affirmed on 12th September 2007. That is an affidavit which sets out the Applicant's litigation history.
The decision of the Refugee Review Tribunal which is the subject of the application is a decision that was signed on 9th July 2007. The Tribunal found that it did not have jurisdiction. The Tribunal noted that the Applicant had previously applied to the then Department of Immigration & Multicultural & Indigenous Affairs for a Protection (Class XA) visa on 30th October 2003.
A delegate of the Minister refused the application for a visa on 1st April 2004 and the Applicant sought review of that decision by means of an application lodged with the Refugee Review Tribunal on 27th April 2004. The Tribunal, differently-constituted, affirmed the delegate's decision on 12th August 2004. The Tribunal noted:
The applicant unsuccessfully sought judicial review of the Tribunal's decision.
The Tribunal noted that after the Applicant's latest application, being for special leave to the High Court of Australia, the Applicant lodged a further application for review of the delegate's decision of the Refugee Review Tribunal. The Tribunal noted the Applicant's submission that he wished to lodge a further application to the Tribunal for the following reasons:
· The delegate of the Minister misunderstood his claim and the applicant was deprived of natural justice.
· The previous Tribunal did not provide the applicant with an opportunity in accordance with s.424A of the Migration Act.
· The situation in his country has changed and the agents of the state are subject to violate human rights.
The Tribunal noted that the question that arose in the case before it was whether the Tribunal has jurisdiction to review the delegate's decision on the basis of the application for review lodged on 4th July 2007. The Tribunal found out that it did not. The Tribunal said, in the final paragraph on the second page of the decision:
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 Tribunal is precluded from again considering the matter. The Tribunal has no jurisdiction to review a delegate's decision twice (see Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and SZIIV v Minister for Immigration & Multicultural Affairs [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 Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], and Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7]), 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 Tribunal found that the delegate's decision of 30th March 2004 is an RRT‑reviewable decision. However, the Applicant has previously lodged an application for review of the same decision and the Tribunal accepted that application and conducted the review. Therefore, the Tribunal has already discharged its functions under s.414 of the Migration Act to review the decision, and the Tribunal did not accept that the Applicant's application for lodging a fresh application for review provides any basis for accepting the application lodged on 4th July 2007.
As the Tribunal has already discharged its functions under the Act to review the delegate's decision of 30th March 2004, it no longer has jurisdiction in relation to that decision. The Tribunal found that, having reached that conclusion, it was unnecessary to consider whether the review application lodged on 4th July 2007 was lodged outside the prescribed time period and was therefore invalid. The Tribunal found it did not have jurisdiction.
The litigation history of this matter is set out in the affidavit of Scott Crawford Maloney. The Applicant originally attended a hearing at the Refugee Review Tribunal, where he gave oral evidence on 22nd July 2004. The Tribunal signed its decision on 12th August 2004 and handed that decision down on 2nd September 2004. The Tribunal affirmed the decision not to grant a protection visa.
The Applicant then sought judicial review of that decision, by filing an application in the Federal Magistrates Court. That application was heard by Emmett FM on 22nd November 2005, and Her Honour handed down a decision on 6th December 2005, dismissing the application with costs (see NBJA v Minister for Immigration & Anor[3]).
[3] [2005] FMCA 1759
The Applicant then appealed against that decision. On 19th September 2006 Edmonds J ordered that the appeal be dismissed with costs (see NBJA v Minister for Immigration & Multicultural & Indigenous Affairs[4]).
[4] [2006] FCA 1245
The Applicant then sought special leave to appeal to the High Court of Australia. On 14th June 2007 Gummow and Haydon JJ dismissed the application for special leave (see NBJA v Minister for Immigration & Multicultural Affairs & Anor[5]).
[5] [2007] HCA Trans 283
The Applicant then brought a fresh application to the Refugee Review Tribunal on 4th July 2007. The application was refused on 9th July 2007, with a finding that the Tribunal does not have jurisdiction in the matter.
Application for Judicial Review
The Applicant, in his application, sets out three grounds:
1. The Tribunal erred when holding that the first Tribunal discharged its statutory obligations, and therefore it had no jurisdiction to consider the application before it in circumstances where the delegate's decision already reviewed by the first Tribunal did not constitute an RRT‑reviewable decision, by reasons that decision notification did not comply with statutory requirements.
2. When the Tribunal assessed my case. Since then the situation has been changed, particularly the army has grabbed the power, which need to be considered by the Tribunal. The Tribunal made jurisdictional error by finding that it failed to comply with s.424A in relation to the information, which was the reason for offering the decision under review.
3. The Tribunal made decision and mentioned its jurisdictional inability in regard to consider my case, which will be considered a jurisdictional error.
The Applicant provided written submissions to the Court today. The first paragraph says:
I am the applicant, a citizen of Bangladesh, seeking judicial review of a decision of the Refugee Review Tribunal ("RRT") dated 12 August 2004 and handed down on 2 September 2006.
That is clearly an error.
The submission then follows, in paragraphs 2 through to 20, setting out why the Applicant believes the Tribunal fell into jurisdictional error in its decision of 12th August 2004. The submission is entirely irrelevant to the application before the Court, because the application before the Court is not to review the decision of the Refugee Review Tribunal of 2004; it is an application to review the decision of the Refugee Review Tribunal made on 9th July 2007.
Ground 1
The Applicant provides no reason in respect of Ground 1 to show that the Tribunal, in July 2007, erred when holding that the first Tribunal discharged its statutory obligations, and therefore it had no jurisdiction to consider the application. The Tribunal correctly found that it had already reviewed the delegate's decision three years earlier and it had no jurisdiction to revisit that decision; it was functus officio. The first ground fails.
Ground 2
As to the Applicant's second ground, the Tribunal did refer to the Applicant's claim that there was a change in the situation in Bangladesh and addressed that point on the second page of its decision by saying:
Even if circumstances in the applicant's country have changed, this does not provide a basis for the Tribunal to accept the second review application or to review the delegate's decision.
That is clearly correct.
The Applicant's second ground also refers to a breach of s.424A of the Migration Act, in relation to information which was a reason for offering the decision under review. No particulars are provided of any breach of s.424A of the Migration Act and indeed it is highly irrelevant. The Applicant's second ground fails.
Ground 3
The third ground, that the Tribunal's finding that it had no jurisdiction to reconsider the delegate's decision was itself a jurisdictional error, is a ground of no substance. Clearly, that ground fails also.
Conclusions
Unfortunately, no matter how much the Court may sympathise with citizens of Bangladesh, or any other country, who claim that the present situation in their home country has changed, this does not give the Court any power to grant relief in respect of proceedings that have already been decided.
The practice of bringing a fresh application to review a decision of a delegate is, unfortunately, an abuse of process. I might add that an application to review a decision of the delegate made some three years out of time is also an application that will fail because the Tribunal does not have the power under s.412 of the Migration Act to hear the application, because the time limit in s.412 is mandatory.
The fact is that the application before the Court is one that has no reasonable prospects of success or indeed any prospects of success whatsoever. It is an abuse of process and an abuse of process should be discouraged by the Court.
I also propose to make an order restraining the Applicant from bringing any fresh proceedings in this Court for review of either the original Tribunal decision or any fresh application for review of the decision of the Refugee Review Tribunal of 9th July 2007.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 October 2007
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