S1307 of 2003 v Minister for Immigration
[2007] FMCA 1385
•23 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1307 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1385 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – second application to Tribunal for review of a decision of a delegate – summary dismissal – no reasonable prospect of success. |
| Migration Act 1958 (Cth), s.48B Federal Magistrates Court Rules r.13.10(a) |
| Applicant S1307/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1799 Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 Muin v RRT (2002) 190 ALR 601 SZASP vMinister for Immigration &Citizenship [2007] FCA 771 White Industries Aust Ltd v Commissioner for Taxation [2007] FCA 511 |
| Applicant: | APPLICANT S1307 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG123 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J. Dooley |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application of 15 January 2007 be dismissed pursuant to Part 13, r.13.10(a) of the Federal Magistrates Court Rules.
That the applicant pay the costs of the first respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG123 of 2007
| APPLICANT S1307/2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of a notice of motion filed by the first respondent on 7 February 2007 seeking summary dismissal of an application filed by the applicant on 15 January 2007 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 December 2006. The Tribunal found that it had no jurisdiction in circumstances where the applicant had previously sought and obtained review by the Tribunal of the decision of a delegate of the first respondent not to grant the applicant a protection visa.
Briefly, (as set out in the affidavit of Jonathon Carey Wright of
24 January 2007) the applicant lodged an application for a protection visa in January 1997. On 29 April 1997 that application was refused by a delegate of the first respondent. The applicant sought review by the Tribunal of the delegate’s decision. By decision handed down on 29 April 1998 the Tribunal affirmed the delegate’s decision (the first Tribunal decision). Subsequently the applicant sought judicial review of the first Tribunal decision in the Federal Court. That application was dismissed. The applicant then joined a class action in the High Court in September 1998. Those proceedings were joined to the Muin (see Muin v RRT (2002) 190 ALR 601) proceedings in 2001. The applicant filed an individual application in the High Court in May 2003 that was remitted to the Federal Court. On 20 February 2004 his application for an order nisi was refused by the Federal Court.
In March 2004 applicant filed an application for judicial review of the Tribunal decision of April 1998 in this Court. The respondent sought summary dismissal. However on the date on which that motion was listed for hearing (29 November 2004) Driver FM ordered that leave be granted for the applicant’s notice of discontinuance to be filed.
The applicant then sought leave to appeal to the Full Court of the Federal Court in relation to the orders and judgement of the Federal Court of 20 February 2004. The application for leave to appeal and extension of time was dismissed by the Full Court of the Federal Court. The applicant then sought special leave to appeal from that decision in the High Court. That application was dismissed on 10 August 2005.
On 7 September 2005 the applicant filed a fresh application in this Court seeking judicial review of the first Tribunal decision of 29 April 1998. The respondent sought summary dismissal. Lloyd-Jones FM found (in Applicant S1307/2003 v MIMIA [2005] FMCA 1799) that the application was an abuse of process and that the doctrines of res judicata, issue estoppel and Anshun estoppel applied. His Honour dismissed the applicant’s application. He also directed that no further application by the applicant to review the decision of the Refugee Review Tribunal of 29 April 1998 or the decision of the delegate of
29 April 1997 be accepted for filing without leave of this Court.
The applicant sought leave to appeal against the decision of Lloyd-Jones FM. That application for leave was dismissed by the Federal Court and the applicant then unsuccessfully sought special leave to appeal to the High Court. That application was dismissed on 6 October 2006.
On 23 October 2006 the applicant lodged a fresh application with the Refugee Review Tribunal seeking review of the delegate’s decision of 29 April 1997. On 6 November 2006 the Tribunal wrote to the applicant inviting him to comment and provide information on his eligibility for review given that the Tribunal records suggested that the application was out of time and because the Tribunal had already completed a review of the relevant decision. The Tribunal asked the applicant to write to it if he disagreed and thought that the Tribunal had power to consider his application. By letter dated 27 November 2006 the applicant responded, addressing the circumstances of his past and present claims to refugee status. He submitted that his present situation was completely different from the past and claimed that the Tribunal had power to rehear his application in the new situation.
By decision dated 18 December 2006 the Tribunal found that it did not have jurisdiction in this matter (the second Tribunal decision). The Tribunal referred to the fact that it had formed a preliminary view that it did not have jurisdiction because it had already reviewed the delegate’s decision. It noted that it had sought the applicant’s comments, which had been given. The Tribunal found that the initial notice from the department of the delegate’s decision of 29 April 1997 did not constitute a valid notification of the decision (because it incorrectly stated that the applicant was taken to have received the letter seven days after the date of the letter, this being a reference to an invalid deeming provision contained in the Migration Regulations). Nonetheless the Tribunal observed that at the time of the previous review application it had accepted the application and conducted a review.
Relevantly, the Tribunal found that as it had already discharged its functions under the Act to review the delegate’s decision of 29 April 1997, it no longer had jurisdiction in relation to that decision. The Tribunal addressed the applicant’s submissions in relation to changed circumstances. It found that while changed circumstances may be a basis on which the Minister might permit lodgement of a second protection visa application under s.48B of the Migration Act 1958 (Cth) it did not provide any legal basis for the Tribunal to accept a second review application or to reconsider the delegate’s decision.
The Tribunal concluded that as it had already discharged its functions under the Act to review the delegate’s decision of 29 April 1997 the application for review was “not a valid application because the Tribunal no longer has jurisdiction in relation to that decision”.
The applicant now seeks review of the second Tribunal decision. His application for review raises four very general and unparticularised grounds. They are that the Tribunal failed to act according to the migration law and regulation, that it did not apply the correct laws, that it misinterpreted the laws, and that it failed to exercise its jurisdiction under the Act.
The first respondent seeks summary dismissal on alternative bases, being either that the applicant has no reasonable prospect of successfully prosecuting the proceedings, that the proceedings are frivolous and vexatious, or that the proceedings are an abuse of process.
The primary basis relied upon by the respondent is the contention that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim under r.13.10(a) of the Federal Magistrates Court Rules as there is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa.
The applicant filed written submissions in which he reiterated his claims. He takes issue with aspects of the decision and procedures of the Tribunal and contends that the Tribunal erred in not considering the changed circumstances, not inviting him to a hearing and not giving him the opportunity to deliver his oral witnesses. I have considered each of those claims and also his oral contentions in relation to natural justice.
First, it is clear that the Tribunal’s conclusion that there had been a prior review of the delegate’s decision and that it no longer had jurisdiction to review the delegate’s decision as it had already discharged its functions under the Migration Act 1958 (Cth) to carry out such a review was correct (see Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP vMIAC [2007] FCA 771 at [4] and cases cited therein). Moreover, as Moore J held in SZASP at [4] the Tribunal in that case (and also in this case) was correct in finding that:
… changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister’s power to permit lodgement of a further protection visa application under s48B of the Act.
On this basis it cannot be said that the Tribunal erred either in finding generally that it had no jurisdiction or in finding that it had no jurisdiction in the face of the applicant’s contentions as to changed circumstances.
The obligations in the Migration Act in relation to inviting an applicant to a Tribunal hearing had no application. The Migration Act does not oblige the Tribunal to invite the applicant to a hearing in relation to the preliminary issue of whether or not the Tribunal has jurisdiction.
Insofar as it appears to be submitted for the applicant that the Tribunal denied him natural justice in some way, I note that the Tribunal wrote to him, as set out above, not only in relation to the timing of the application of 23 October 2006 but also to put to him for comment its view that the application appearing to the ineligible because the Tribunal had already completed a review of the relevant decision of the delegate. The applicant was given an opportunity to respond to these concerns. He took that opportunity and his response was considered by the Tribunal in its reasons for decision. No arguable lack of procedural fairness, let alone jurisdictional error, is apparent in the manner in which it proceeded. I also note, for the sake of completeness, that this is not a case in which a court of had quashed an earlier Tribunal decision and directed that there be a reconsideration by the Tribunal.
In these circumstances, no argument by the applicant as to jurisdictional error in connection with the Tribunal decision dated
18 December 2006 (whether in relation to its procedures or in relation to the substantive issues) has any prospect of success. The issues that the applicant raises in relation to the approach taken by the first Tribunal are not relevant as that decision is not in issue in these proceedings.
While mindful of the caution to be exercised in relation to an application for summary dismissal (see Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 per Rares J in relation to the assessment of “reasonable prospects of success” for the purposes of s.31A of the Federal Court of Australia Act 1976 (Cth)) in this case I am satisfied that the application for review of the second Tribunal decision is bound to fail (see White Industries Aust Ltd v Commissioner for Taxation [2007] FCA 511 at [45] – [60] per Lindgren J in relation to the meaning of “no reasonable prospect of success”). There has been no argument put before the Court by the applicant, nor indeed, is there any argument available to the applicant which holds any prospect of success in establishing that the Tribunal had jurisdiction to consider afresh his entitlement to a protection visa or that it fell into jurisdictional error in finding that it had no jurisdiction.
I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting the proceedings. It is appropriate that the application be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules. In these circumstances it is not necessary for the Court to determine whether the proceedings are also frivolous and vexatious or an abuse of process (but see the discussion by Moore J in SZASP in relation to a number of cases raising issues similar to that raised in these proceedings).
RECORDED : NOT TRANSCRIBED
The notice of motion being successful, the applicant has been unsuccessful in his application for review of the decision of the Tribunal. The first respondent seeks costs on an indemnity basis, and if indemnity costs are not awarded then the sum of $2500 in accordance with the Federal Magistrates Court Rules. The applicant has an extensive history of prior litigation in this and in other courts. However, as set out above, that litigation history relates to a different decision of the Tribunal. While the Tribunal decision in issue does relate to the same decision of the delegate, I am not persuaded on the material before me that in the circumstances of this case (where the application is dismissed pursuant to r.13.10(a)) it is appropriate that costs be ordered on an indemnity basis. I consider it appropriate the applicant meet the costs of the first respondent in the amount provided for under the Federal Magistrates Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 August 2007
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