S1060 of 2003 v Minister for Immigration

[2007] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1060 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 314

MIGRATION – Application for review of Refugee Review Tribunal decision – no arguable case raised – Tribunal has no jurisdiction – functus officio.

Migration Act 1958, s.48B
Federal Magistrates Court Rules, r.44.12(1)

MIMA v Thiyagarajah (2000) 199 CLR 343
MIMA v Bhardwaj (2002) 209 CLR 597
SZDMO v The Minister for Immigration & Multicultural Affairs [2006] FCA 989

Applicant: APPLICANT S1060 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3828 of 2006

Judgment of: Turner FM

Hearing date: 22 February 2007

Date of Last Submission: 22 February 2007

Delivered at: Sydney

Delivered on: 22 February 2007

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms Elizabeth Warner Knight

ORDERS

1. The application is dismissed pursuant to Rule 44.12(1)(a) on the basis that no arguable case has been raised.

2. The applicant is to pay the coats of the first respondent fixed at $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3828 of 2006

APPLICANT S1060 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a hearing for the applicant to demonstrate that his application has raised an arguable case for the relief claimed, as provided by Rule 44.12(1).

2. The applicant is a national of Bangladesh. He arrived in Australia on

   
   

   9 August 1996. He lodged an application for a protection visa on

   
   

   9 October 1996. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused that application on 29 April 1997. The applicant applied to the Tribunal for review of that decision on 21 May 1997. The Tribunal affirmed the decision to refuse to grant the applicant a protection visa on

   
   

   7 December 1998. The applicant applied to the Federal Magistrates Court for review of the Tribunal decision and filed an amended application on 12 October 2004. The Federal Magistrates Court dismissed the application on 3 November 2004.

3. The applicant lodged another application for review with the Tribunal on 22 September 2006, seeking a review of the same decision. On

   
   

   5 December 2006 the Tribunal found that it had no jurisdiction to review that decision again. The Tribunal found:

   While changed circumstances can be a basis on which the Minister might permit lodgement of a second protection visa application under s.48B of the Act, it does not provide any legal 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], MIMA v Bhardwaj (2002) 209 CLR 597 at [7].

   As the Tribunal has already discharged its functions under the Act to review the delegate’s decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.

4. On 20 December 2006 the applicant filed in this Court an application to review the decision of the Tribunal dated 5 December 2006. The grounds of the application are:

   1.  The tribunal’s decision was in breach of the Rule of Denial of Natural Justice.

   2. Particulars:

   The tribunal failed to conduct hearing in this matter. The tribunal accepted this application and failed to offer hearing to the applicant.

5. The applicant was invited to and put submissions to the Court in support of his application. The first respondent put submissions opposing the application and in the course of those submissions handed a copy of the decision to the Court in SZDMO v The Minister for Immigration & Multicultural Affairs [2006] FCA 989. This is a decision of the Federal Court of Australia by Justice Rares on 11 July 2006. The decision upheld a decision by Federal Magistrate Driver involving similar circumstances to those in this matter.

6. The Court is not satisfied that the application has raised an arguable case. The Tribunal no longer has jurisdiction in relation to the decision sought to be reviewed. It is functus officio.

7. Rule 44.12(1)(a) of the rules of this Court provide that:

   At the hearing of an application for an order to show cause the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application. 

8. The application is dismissed pursuant to Rule 44.12(1)(a).

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

Associate: Sarah James

Date: 22 February 2007