S1033 of 2003 v Minister for Immigration

[2008] FMCA 777

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1033 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 777

MIGRATION – RRT decision – second application to Tribunal – rejected for absence of jurisdiction – no arguable error shown – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), s.477

Applicant S 1033/2003 v Minister for Immigration & Citizenship [2008] FCA 216
Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565
S1033 of 2003 v Minister for Immigration & Anor [2007] FMCA 1921

Applicant: APPLICANT S1033 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1156 of 2008

Judgment of: Smith FM

Hearing date: 3 June 2008

Delivered at: Sydney

Delivered on: 3 June 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms C Kelso

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $950.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1156 of 2008

APPLICANT S1033 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 May 2008, in which the applicant seeks orders to direct the Refugee Review Tribunal to entertain an application for review, which the applicant lodged with the Tribunal on 20 March 2008.

2. In a decision posted to the applicant on 15 April 2008 and dated 14 April 2008, the Tribunal said that it did not have jurisdiction to entertain the application, because a previous Tribunal on 17 January 2006 had already reviewed the decision of the delegate of the Minister made on 31 July 1997, for which the applicant was seeking a second review. An earlier 1998 decision of the Tribunal had been set aside by order of this Court. The Tribunal referred to well known authority that the Tribunal has no jurisdiction to review a delegate’s decision twice.

3. The Tribunal referred to previous litigation conducted by the applicant seeking to obtain judicial review of the Tribunal’s 2006 decision. His application had been brought outside the time required under s.477 of the Migration Act, even under the interpretation of that section taken in Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565. For that reason, Scarlett FM dismissed an application for judicial review (see S1033 of 2003 v Minister for Immigration & Anor [2007] FMCA 1921). An application for leave to appeal and for an extension of time was considered by Flick J, and was refused (see Applicant S 1033/2003 v Minister for Immigration & Citizenship [2008] FCA 216).

4. The applicant’s present application contains no grounds which challenge the Tribunal’s opinion as to its absence of jurisdiction, but presents arguments to establish that he is a refugee, and that the first Tribunal’s decision was wrong on its merits. 

5. It raises no arguable basis for the relief it claims, and I am unable to discern any prospect that an arguable case could be identified by or on behalf of the applicant to establish jurisdiction in the Tribunal to entertain his second application. 

6. The applicant was put on notice prior to today’s listing that the Minister would ask for the summary dismissal of the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), and in my opinion it is appropriate to address that application today.

7. The applicant opposed summary dismissal. However, his arguments in support of bringing the present application were, as with his original application, not directed at establishing jurisdiction in the Tribunal, nor showing why the Tribunal’s decision on jurisdiction was arguably erroneous.

8. In my opinion, the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it today under r.44.12(1)(a).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  13 June 2008