S1836 of 2003 v Minister for Immigration

[2008] FMCA 321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1836 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 321

MIGRATION – Application to review decision of Refugee Review Tribunal where Tribunal found that it had no jurisdiction – summary dismissal.

Migration Act 1958 (Cth), ss.66, 353A, 412, 420, 494C
Federal Magistrates Court Rules rr.13.10, 44.12

Applicant V346 of 2006 v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 536
Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
Jayasingah v Minister for Immigration & Ethnic Affairs [1997] FCA 551
Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
NAHP v Minister for Immigration & Multicultural Affairs [2004] FMCA 145
S1836 of 2003 v Minister for Immigration & Citizenship [2007] FMCA 666
S1836 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 65
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
SZASP v Minister for Immigration & Citizenship [2007] FCA 771
SZDFW v Minister for Immigration & Multicultural & Multicultural Affairs [2005] FCA 1821
SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 989
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
White Industries Australia Limited v Commissioner for Taxation [2007] FCA 511

Applicant: APPLICANT S1836 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3191 of 2007

Judgment of: Barnes FM

Hearing date: 5 February 2008

Last date for submissions: 4 March 2008

Delivered at: Sydney

Delivered on: 20 March 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application filed on 15 October 2007 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3191 of 2007

APPLICANT S1836 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court by way of a notice of motion filed by the first respondent on 23 November 2007 seeking summary dismissal of an application filed by the applicant in this Court on 15 October 2007. The applicant sought review of a decision of the Refugee Review Tribunal handed down on 18 September 2007.

   
   

   The Tribunal found that it had no jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a protection visa because the applicant had previously sought and obtained a review by the Tribunal of the same decision of the delegate. 

2. The first respondent seeks summary dismissal pursuant to r.13.10(a) or r.13.10(c) of the Federal Magistrates Court Rules on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim or that the proceeding is an abuse of the process of the Court. The first respondent relied on an affidavit of Elizabeth Warner-Knight affirmed on 22 November 2007 and filed on 23 November 2007 and copies of a number of documents filed in or relating to previous judicial review proceedings involving the applicant. Both parties filed written submissions. In order to ensure that the applicant could address issues raised by the documents tendered at the hearing, orders were made for post-hearing written submissions which were filed by both parties.

3. There is a somewhat lengthy background to the present proceedings.  The applicant did not take issue with the chronology provided by the solicitor for the respondent of his past involvement in judicial review proceedings and applications to the Tribunal. 

4. The applicant arrived in Australian in July 1999.  On 17 August 1999 he lodged an application for a protection visa.  On 27 October 1999 a delegate of the first respondent refused to grant the applicant a protection visa.  The applicant sought review of that decision by application lodged with the Refugee Review Tribunal on 29 November 1999.  On 4 July 2000 the Tribunal affirmed the decision not to grant the applicant a protection visa (the first Tribunal decision).

5. On 1 August 2000 the applicant sought judicial review of the Tribunal decision by application filed in the Federal Court of Australia. On 11 October 2000 Whitlam J made orders by consent remitting the application to the Tribunal for redetermination. 

6. On 28 February 2001 the Tribunal (differently constituted) handed down a decision affirming the decision of the delegate to refuse to grant a protection visa to the applicant (the second Tribunal decision).

7. Subsequently the applicant was joined as a represented party in the High Court proceedings S89 of 1999 (see Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966). On 13 June 2003 the applicant filed an application in his own name in the High Court of Australia seeking orders nisi in relation to the second Tribunal decision. Pursuant to the orders that had been made by Gaudron J on 25 November 2002 in the Lie proceedings, upon filing this application the applicant’s name was removed from the persons in the Lie proceedings and his order nisi application was remitted instanter to the Federal Court.  That application was dismissed by the Federal Court by orders made by consent by Emmett J on 30 April 2004. 

8. On 11 May 2004 the applicant filed an application in this Court seeking judicial review of the second Tribunal decision. However on 3 November 2004 the applicant filed a notice of discontinuance.

   
   

   The first respondent sought and obtained an order (by consent) that the applicant pay the respondent’s costs in the sum of $3,000. 

9. On 27 October 2005 the applicant filed an application in this Court seeking judicial review of the decision of the delegate of 27 October 1999. That application contended that the delegate’s decision was invalid due to a failure to follow procedures in relation to notification of the delegate’s decision. On 17 January 2006 Federal Magistrate Smith dismissed the application under r.13.10(c) of the Federal Magistrates Court Rules as an abuse of the process of the court.

   
   

   His Honour ordered that the applicant pay the respondent’s costs on an indemnity basis and directed that no further application for review of the decision of the Refugee Review Tribunal handed down on 28 February 2001 (the second Tribunal decision) or for review of the decision of the delegate of the respondent dated 27 October 1999 or “for review of any notification of those decisions” should be accepted for filing without prior leave of the court. His Honour gave a number of reasons why the application was an abuse of process in circumstances where the applicant had previously sought merits review of the delegate’s decision by proceedings before the Tribunal and then judicial review in relation to such a Tribunal decision (see S1836 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 65 at [13] – [16] and also see SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549).

10. On 14 May 2006 the applicant filed an application in the Federal Court seeking leave to appeal from the judgment of Smith FM.

    
    

    On 15 September 2006 the applicant filed a notice of discontinuance of those proceedings in the Federal Court.

11. On 9 November 2006 the applicant lodged a further application with the Refugee Review Tribunal seeking review of the delegate’s decision of 27 October 1999. On 23 January 2007 the Tribunal found that it had no jurisdiction as it had already discharged its function under the Migration Act 1958 (Cth) to review the delegate’s decision (the third Tribunal decision).

12. On 27 February 2007 the applicant filed an application in this Court seeking judicial review of the third Tribunal decision. On 23 April 2007 that application was dismissed by Lloyd-Jones FM pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules on the basis that it did not raise an arguable case for the relief claimed. In the course of his judgment Lloyd-Jones FM accepted (at [12] – [13]) that the application had no prospects of success, that the Tribunal was correct in finding it had no jurisdiction to determine the application as it was functus officio and that there was nothing in the grounds of review which could challenge the correctness of the Tribunal’s inevitable conclusion that it lacked jurisdiction.  His Honour also accepted that it was well established that a repeated attempt to seek review in the Tribunal of a decision of a delegate was not permissible (SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 989 at [7] per Rares J) and that the application to the Court was an abuse of the court’s process (see S1836 of 2003 v Minister for Immigration & Citizenship [2007] FMCA 666 at [10] – [13]).

13. On 21 May 2007 the applicant filed an application in the Federal Court seeking leave to appeal from the judgment of Lloyd-Jones FM.

    
    

    On 4 June 2007 the applicant filed a notice of discontinuance of those proceedings.

14. On 22 June 2007 the applicant then lodged a further application with the Tribunal, again seeking review of the delegate’s decision of 27 October 1999. On 18 September 2007 the Tribunal handed down a decision that it did not have jurisdiction to review the decision as it had already discharged its functions under the Act to review the delegate’s decision (the fourth Tribunal decision). It is this decision that is the subject of these proceedings. 

15. In the course of its decision the Tribunal referred to the decision of the Tribunal handed down on 28 February 2001 (the second Tribunal decision) in relation to which the applicant had unsuccessfully sought review and also to the other applications for review by the applicant to the Tribunal and judicial review proceedings. Having reached the conclusion that it had no jurisdiction the Tribunal found it unnecessary to consider whether the review application lodged with it on 22 June 2007 was lodged outside the prescribed time period and hence was invalid.

16. On 15 October 2007 the applicant filed the application now under consideration in this Court seeking judicial review of the Tribunal’s decision handed down on 18 September 2007 that it had no jurisdiction to conduct a further review. The application for summary dismissal relates to this proceeding. 

17. The main basis on which it is contended for the first respondent that the present application for judicial review should be summarily dismissed is that it is an abuse of the process of the Court. In support of this proposition the first respondent made written and oral submissions which addressed not only the grounds in the application of 15 October 2007 but also issues raised by the applicant’s pre and post-hearing written submissions.

18. It is relevant to note that the application relied on the following grounds in the judicial review application of 15 October 2007:

    1. The applicant was applying for application to consider RRT application on humanitarian consideration under Migration ACT. I have substantial ground to be persecuted in my home country and I can not go back my country. The RRT dismissed my case.

    2.  The Refugee Review Tribunal failed to accord the natural justice:

    Particulars

    A. I claimed before the Tribunal that I lodged the review application again on the basis of circumstantial changes in my country.  In changing political situation in Bangladesh International concern has been mounting over the brutal tactics used by the authorities in Bangladesh and in Late line Report on 7^th June 2007 evidence has been uncovered during an investigation by the ABC, linking the military backed Bangladesh Government with mass arrests, torture and at least 100 murders of detainees since January 07.

    2.(sic)The Refugee Review Tribunal failed to realise the genuine issue of my persecution

    Particulars:

    I claimed before Tribunal I faced persecution because of my political Involvement.  The Tribunal failed to realise the consequence of this case.

    3.  The Tribunal did not apply the correct laws when consider this matter.

    4.  The Tribunal misinterpreted the Migration Law.

    5.  The Tribunal erred in law that it did not properly consider the applicant claim.

    6. The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act.

19. The applicant did not file any amended application as provided for in orders made at a directions hearing on 8 November 2007.

20. In written submissions filed on 11 January 2008 the applicant claimed in relation to the respondent’s notice of motion that the notifications of the Tribunal decision handed down in February 2001 (the second Tribunal decision) and of the delegate’s decision of 27 October 1999 were not correct. In relation to the delegate’s decision the notification was said to have referred to seven days rather than seven working days (s.494C of the Act). He claimed that the notification of the second Tribunal decision did not clearly identify statutory time limits on judicial review applications and hence was not valid. It seems that he contended that the notification of the second Tribunal decision was also deficient in that it did not refer to the effect of s.66 of the Migration Act 1958 (Cth).

21. It was also claimed that as the second Tribunal decision simply affirmed the delegate’s decision and did not set it aside or vary it, the applicant was still the subject of the primary decision and satisfied s.412(2) of the Act. It was contended that the Tribunal had an obligation to further review the delegate’s decision because of these notification issues which were said to have the effect of nullifying the notification so that the second Tribunal decision could not come into effect.

22. These grounds raise issues in relation to notification of the delegate’s decision and the second Tribunal decision handed down on 28 February 2001 (cf the orders made by Federal Magistrate Smith in S1836 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 65) albeit review is sought of the fourth Tribunal decision in relation to jurisdiction.

23. In post-hearing submissions the applicant claimed he was denied procedural fairness at the time of assessment of his protection claims and that he was not abusing the court process. He referred to a direction made to Tribunal members under ss.353A and 420A of the Migration Act in relation to provision of information to applicants during hearings and on this basis contended that he should have been given the opportunity by the Tribunal to respond to adverse information.

24. I am satisfied however that the present application for judicial review is an abuse of the process of the court for a number of reasons. It is relevant to have regard to his litigation history and his prospects of success. 

25. While the initial application for judicial review of the first Tribunal decision was remitted by consent, the matter was thereafter considered by the Tribunal. The second decision of the Tribunal handed down on 28 February 2001 provided the applicant with the review of the delegate’s decision which he sought. The applicant’s attempts to seek judicial review of that decision were unsuccessful. First his application of 13 June 2003 to the High Court (in relation to which he had legal representation), which was remitted to the Federal Court, was dismissed (albeit by consent). Secondly his application to the Federal Magistrates Court in relation to the second Tribunal decision was brought to an end by his discontinuance. Thereafter he sought review of the delegate’s decision. That application was dismissed as an abuse of process and he discontinued an application for leave to appeal.

    
    

    He again sought review by the Tribunal. The Tribunal decided that it had no jurisdiction. His application for judicial review of that decision was dismissed and he discontinued his appeal. He then sought the Tribunal review in issue in these proceedings.

26. I have also had regard to the fact that there is no merit apparent in any of the grounds relied on by the applicant either in the initial application or raised in the written submissions. The applicant has no prospect of succeeding in an argument that a failure by the delegate to comply with notification requirements arising under s.66 of the Migration Act 1958 (Cth) would invalidate the decision with the result that he was still subject to the primary decision as claimed. I note that the applicant’s attempt to challenge the validity of the delegate’s decision on the basis of complaints about the validity of notification has already been held by Smith FM to be an abuse of process of the court (see Applicant S1836 of 2003 v Minister Immigration). Insofar as it is contended that the delegate’s decision was not actually notified to the applicant, this clearly cannot be the case as he sought review by the Tribunal of that decision. If this is an indirect attempt to seek review of the delegate’s decision, such an application could not succeed for the reasons given by Wilcox J in SZDFW v Minister for Immigration & Multicultural & Multicultural Affairs [2005] FCA 1821 at [8] in which his Honour pointed out that once the delegate’s decision had been reviewed it was of no significance and there would be no possibility of any court in the exercise of its discretion intervening to set aside such a delegate’s decision.

27. In any event it was not necessary for the Tribunal in the present case to determine these issues or whether the application for review was out of time and invalid on that basis, as it was open to it to determine the review application as it did on the basis that it was functus officio. (See Jayasingah v Minister for Immigration & Ethnic Affairs [1997] FCA 551 and Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; Applicant V346 of 2006 v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 536 and NAHP v Minister for Immigration & Multicultural Affairs [2004] FMCA 145). There is nothing in the grounds relied on by the applicant which could challenge the correctness of the Tribunal’s conclusion that it lacked jurisdiction. The applicant’s complaints about notification of the Tribunal decision handed down on 28 February 2001 (which I note were also raised in the proceedings before Federal Magistrate Lloyd-Jones) do not assist the applicant in this regard. There is no issue in this case about application of any time limits in which to commence judicial review proceedings. The applicant did not clarify the basis for these contentions in oral or written submissions.

28. The applicant had a Tribunal review.  However, after the review which resulted in the second Tribunal decision, having discontinued judicial review proceedings, he sought a further review by the Tribunal of the same delegate’s decision. In the third Tribunal decision the Tribunal found that it was functus officio. The applicant’s judicial review application was dismissed by this Court on the basis that there was no arguable case. The application for leave to appeal was, again, discontinued by the applicant. Despite this, he then sought yet another review by the Tribunal and once again seeks judicial review of that decision. The applicant has repeatedly instituted unsuccessful and futile proceedings.

29. There is nothing in the material before the Court to establish any arguable case that the Tribunal erred in finding that it had no jurisdiction, consistent with well-established authority to the effect that where a matter has already been considered by the Tribunal the Tribunal has no jurisdiction to determine the application (see Jayasingah and SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 989 at [7]). As Lloyd-Jones FM accepted in S1836 of 2003 at [12] it is well established that a repeated attempt to seek review in the Tribunal of a decision of a delegate is “not permissible”. 

1. The fact that circumstances in an applicant’s home country may have changed does not provide a basis for the Tribunal to accept a fresh review application (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). Thus these proceedings are bound to fail.

2. Further, in light of the litigation history of the applicant and his successive applications for review by the Tribunal of the same delegate’s decision I consider that in this case it can be inferred that the present application for judicial review has been initiated by the applicant for “the predominant purpose of engaging in protracted litigation with the Minister for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceedings regardless of their merits” (SZGMZ per Smith FM at [26]). I agree with Smith FM in SZGMZ at [26] that to use the court’s processes for such purpose is an abuse of that process.

3. Hence the present application for judicial review should be dismissed as an abuse of process.

4. In the alternative I am satisfied that the application should be dismissed under r.13.10(a) of the Federal Magistrates Court Rules on the basis that the applicant had no reasonable prospect of success, having regard to the fact that the Tribunal was undoubtedly correct in finding that it had no jurisdiction to determine the application as it was functus officio by reason of its decision handed down on 28 February 2001. I note again that even if circumstances in the applicant’s country had changed (although there is nothing to indicate that the applicant raised such a claim with the Tribunal on the last occasion) the Tribunal has no jurisdiction to review a decision of a delegate again on that basis, albeit that such a change may provide a basis for the Minister to permit a further application under s.48B of the Act (see SZASP v Minister for Immigration & Citizenship [2007] FCA 771).

5. The applicant’s general complaint that he had grounds on which to fear persecution does not provide any basis on which the Tribunal’s decision that it had no jurisdiction could be shown to be in error.

   
   

   Nor does his contention that the Tribunal failed to accord him natural justice and indeed this ground appears to refer to the earlier Tribunal decision which considered the merits of his claim. Similarly the contention that the Tribunal failed to realise the genuine issue of his persecution appears to relate to the earlier Tribunal decision as the Tribunal did not consider the issue of the well foundedness of his fear of persecution in the decision presently in issue. The general and unparticularised contentions that the Tribunal did not apply the correct laws, misinterpreted the Migration Act, erred in law as it did not properly consider the applicant’s claim or engaged in an improper exercise of power provide no basis for establishing any basis on which the applicant has any prospect of success. There is nothing in these grounds which would challenge the correctness of the Tribunal’s decision that it lacked jurisdiction. Similarly, as set out above, the matters raised in the written submissions provide no basis for an arguable contention of jurisdictional error on the part of the Tribunal.

6. In considering whether the application should be dismissed summarily under r.13.10(a) I have borne in mind the caution to be exercised in relation to an application for summary dismissal and the principle that an order which prevents the party from pursuing a claim should only be made in a very clear case (see Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at [91]). I consider that this is such a very clear case. I have also had regard to the difference between the earlier form in which r.13.10(a) appeared and the present test (see Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 in which Rares J discussed the Federal Court equivalent.

7. Nonetheless I am satisfied that for the reasons set out above the application for review of the last Tribunal decision is bound to fail (see White Industries Australia Limited v Commissioner for Taxation [2007] FCA 511 at [45] – [60]). There has been no argument put before the Court and nor 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.

8. Accordingly the application should be dismissed. 

9. In post-hearing written submissions the first respondent sought costs on an indemnity basis. As this has not been addressed by the applicant I will hear submissions in relation to costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 March 2008