S1836 of 2003 v Minister for Immigration
[2007] FMCA 666
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1836 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 666 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class AZ) visa – show cause hearing under r.44.12 of the Federal Magistrate Court Rules 2001 (Cth) – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.48B, 66, 91X, 476, 494C Federal Magistrates Court Rules 2001 (Cth), r.44.12 |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 SZDMO v Minister for Immigration [2006] FCA 989 SZIIV v Minister for Immigration [2006] FMCA 322 |
| Applicant: | APLICANT S1836 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG678 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Bengali interpreter |
| Solicitors for the Respondents: | Ms E Warner Knight of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 27 February 2007 is dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG678 of 2007
| APPLICANT S1836 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicant seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). Both parties appeared. The applicant is a self-represented litigant and had the assistance of an interpreter. I believe it is the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons shortly.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
27 February 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 23 January 2007 rejecting the application on the grounds that the Tribunal had already discharged its function under the Act to review the delegate's decision. Therefore, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.
The applicant applied for an order for the first respondent to show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act in respect of the Tribunal decision of S Karas, reference 060941304.
The Response filed by the first respondent on 7 March 2007 submits that the application for an order to show cause should be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrate Court Rules 2001(Cth) (“the Rules”), on the basis that it does not raise an arguable case for the relief claimed and the application is an abuse of the process of the Court.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “Applicant S1836/2003”.
The respondents’ solicitor, Ms E Warner Knight filed two affidavits in these proceedings:
a)Affidavit affirmed on 15 December 2005 and filed on 20 March 2007 (first affidavit of Ms Warner Knight);
b)Affidavit affirmed on 19 March 2007 and filed on 20 March 2007 (second affidavit of Ms Warner Knight).
Background
The Tribunal decision contains the following background information, which I adopt for the purposes of this judgment:
The applicant applied to the Department of Immigration and Multicultural Affairs (the Department) for a Protection (Class XA) visa on 17 August 1999. The delegate decided to refuse to grant the visa on 27 October 1999 and notified the applicant of the decision and his review rights by letter dated 27 October 1999. The Departmental file indicates that the notification letter was posted by registered pre-paid post on 27 October 1999.
The applicant applied to the Tribunal on 29 November 1999 for review of the delegate’s decision. The Tribunal, differently constituted, affirmed the delegate’s decision on 19 June 2000 and handed down its decision on 4 July 2000 (RRT Reference N99/30849). The applicant successfully sought judicial review of the Tribunal’s earlier decision. The Tribunal, differently constituted, affirmed the delegate’s decision on 8 February 2001 and handed down its decision on 28 February 2001 (RRT Reference N00/35644). The applicant also unsuccessfully sought the Minister’s intervention under s.417 of the Act.
On 9 November 2006 the applicant lodged a further application with the Tribunal to review the delegate’s decision of 27 October 1999.(second affidavit of Ms Warner Knight, p.18)
Application for review of the Tribunal’s decision
On 27 February 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act setting out the following grounds:
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 Tribunal did not apply the correct laws when consider this matter.
3.The Tribunal misinterpreted the Migration Law.
4.The Tribunal erred in law that it did not properly consider the applicant claim.
5.The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act.(copied without alteration or correction)
Litigation history
The first affidavit of Ms Warner Knight provides a convenient summary of the litigation history of the applicant. I have adopted paragraphs 3 to 9 for the purposes of this judgment:
3.On 1 August 2000 an application for an order of review was filed by the applicant in the New South Wales District Registry of the Federal Court of Australia. The application sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 4 July 2000. The Tribunal’s decision affirmed a decision of the delegate of the respondent dated 27 October 1999, refusing to grant the applicant a protection visa.
4.By consent, on 11 October 2000, Whitlam J made orders remitting the matter to the Tribunal differently constituted for reconsideration.
5.On 28 February 2001 a second Tribunal handed down a decision which affirmed a decision of the delegate of the respondent dated 27 October 1999, refusing to grant the applicant a protection visa (the “second Tribunal decision”). It appears that the applicant was a member of the “Muin and Lie class action”. As was the case with such persons, the applicant commenced his own proceeding in the High Court of Australia. On 13 June 2003 the applicant, by his then solicitor, Jyoti Bharati, filed an affidavit in the High Court seeking orders nisi in respect of the second Tribunal decision.
6.The application for orders nisi was remitted to the Federal Court of Australia and ultimately dismissed together with a large number of other such proceedings by Emmet J on 30 April 2004.
7.On 12 May 2004 the applicant filed an application under the Judiciary Act, 1903 and the Migration Act 1958 in this Honourable Court seeking review of the second Tribunal decision.
8.The applicant was voluntarily discontinued on 3 November 2004.
9.On 27 October 2005 an application was filed by the applicant in the Sydney Registry of the Federal Magistrates Court, seeking review of the decision of the delegate of the respondent referred to in paragraph 3 of this affidavit.
Submissions and reasons
The applicant is a self-represented litigant, who appeared with assistance of a Bengali interpreter. At the first Court date of 20 March 2007, the applicant was notified that this matter would be subject to a show cause hearing scheduled for today. He was advised to seek legal assistance in preparation for this hearing. The applicant filed written submissions on 5 April 2007, which raised a new issue – that he was not correctly notified of a Tribunal decision pertaining to him made on 8 February 2001 and handed down on 28 February 2001. The applicant claimed that the notification of that decision was incorrect, in that it did not comply with ss.66 and 494C of the Act. Unfortunately, the written submissions were extremely difficult to follow and the applicant was unable to clarify with oral submissions. I indicated to the applicant that the new issue he raised related to the Tribunal decision made on 8 February 2001 (reference N00/35644) whereas the decision currently before this Court was made on 23 January 2007 (reference 060941304). The decision of 8 February 2001 had been subject to an application for judicial review filed on 11 May 2006 (SYG1378 of 2004) which was discontinued by the applicant on
3 November 2004.
The second application filed with the Tribunal on 9 November 2006 sought a new further review of the delegate’s decision of 27 October 1999. The Tribunal found that it did not have jurisdiction because the Tribunal, differently constituted, had already reviewed the delegate’s decision. The applicant’s written and oral submissions did not address this. Although attempts were made to draw the applicant’s attention to this issue, he continued to pursue the argument in respect of ss.66 and 494C with particular emphasis on the difference between “seven days” and “seven working days”.
Ms Warner Knight, for the respondents, also filed written submissions, which correctly focused on the issue before the Court. Ms Warner Knight submitted that the Court should dismiss the application because it has no prospects of success. Her reasons were as follows:
a)The Tribunal was correct in finding that it had no jurisdiction to determine the application, as it was, by reason of the Tribunal decision of 28 February 2001, functus officio: Jayasinghe v Minister for Immigration (1997) 76 FCR 301; SZIIV v Minister for Immigration [2006] FMCA 322;
b)The application contains broad complaints that the Tribunal decision failed to “apply the correct law” or “misinterpreted the Migration Law”, which were not particularised. There is nothing in these grounds which could challenge the correctness of the Tribunal’s inevitable conclusion that it lacked jurisdiction. It is well-established that a repeated attempt to seek review in the Tribunal of a decision of the delegate is not permissible: SZDMO v Minister for Immigration [2006] FCA 989 at [7] per Rares J;
c)The second application to the Tribunal was an abuse of the Tribunal’s process. The application to this Court is also an abuse of this Court’s process.
I am satisfied that the analysis submitted by Ms Warner Knight is correct and that the Tribunal did not have jurisdiction to reconsider the first Tribunal decision made on 8 February 2001.
Conclusion
Consequently, the application filed in this Court on 27 February 2007 must be dismissed pursuant to r.44.12(1)(a) of the Rules as it does not raise an arguable case for the relief claimed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 May 2007
2
4
0