S1941 of 2003 v Minister for Immigration & Anor
[2007] FMCA 1878
•30 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1941 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1878 |
| MIGRATION – Application to renew decision of Refugee Review Tribunal – summary dismissal – second application to Tribunal for review of decision of delegate of first respondent. |
| Migration Act1958 (Cth) ss. 414, 416 Federal Magistrates Court Rules 2001 rr.13.10, 44.15 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Dey v Victorian Railways Commissioners (1948) 78 CLR 62 Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration and Citizenship [2007] FCA at 771 SZIIV v Minister for Immigration and Anor [2006] FMCA 322 White Industries Australia Ltd v The Commissioner for Taxation [2007] FCA 511 |
| Applicant: | S1941 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2408 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 30 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the applicant's application of 6 August 2007 and amended application of 4 October 2007 be dismissed pursuant to 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2408 of 2007
| S1941/03 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before the Court by way of an application filed by the first respondent on 6 September 2007 seeking summary dismissal of an application filed by the applicant in this Court on 6 August 2007. The applicant sought review of a decision of the Refugee Review Tribunal which was dated 10 July 2007 and handed down 12 July 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 review by the Tribunal of that decision of the delegate.
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 on the basis that the proceeding is an abuse of the process of the Court. A ground that referred to res judicata and estoppel was not addressed in written submissions. The legal representative for the respondent confirmed that summary dismissal was sought under r.13.10(a) or r.13.10(c).
As referred to in the affidavits of Alissa Maree Crittenden of 5 September 2007 and 16 October 2007 and the annexures thereto and as is apparent from the Court Book, the applicant initially lodged an application for a protection visa with the department on 29 August 1997. The application was refused by a delegate of the first respondent on 28 January 1998. The applicant sought review by the Tribunal. On 27 June 2000 the Tribunal affirmed the delegate's decision.
On 9 August 2000 the applicant sought judicial review of that Tribunal decision in the Federal Court of Australia. On 14 November 2000 Emmett J dismissed the application for judicial review after considering the basis on which it was claimed that an error of law was demonstrated in the Tribunal decision. On 15 November 2000 the applicant joined the class action in the High Court known as the Muin and Lie class action. Pursuant to the orders of Gaudron J, the applicant filed draft orders nisi in the High Court and the proceeding was remitted to the Federal Court of Australia. On 20 February 2004 Emmett J refused to grant the order nisi sought by the applicant.
The applicant subsequently commenced proceedings for judicial review of that Tribunal decision in this Court on 16 March 2004, filing an amended application in October 2004. On 28 June 2006, after considering the grounds on which the applicant asserted that there was error, Raphael FM dismissed the applicant's application. The applicant filed a notice of appeal in relation to that decision in the Federal Court. On 5 October 2006 Moore J dismissed the appeal. On 31 October 2006 the applicant filed an application for special leave to appeal in the High Court of Australia. On 14 June 2007, Gummow and Heydon JJ dismissed the application for special leave to appeal.
On 2 July 2007 the applicant lodged with the Tribunal a further application for review of the same delegate's decision. On 10 July 2007 the Tribunal determined that it did not have jurisdiction in the matter.
In its reasons for decision the Tribunal recited the background facts and prior applications by the applicant. It set out the provisions of the Migration Act1958 (Cth) in relation to the Tribunal's jurisdiction and found that as the Tribunal had received a valid application for review of an RRT reviewable decision and carried out its statutory duty to review the decision under s.414 of the Migration Act, it was precluded from again considering the matter. Reference was made to Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 and SZIIV v Minister for Immigration and Anor [2006] FMCA 322 in support of the proposition that the Tribunal had no jurisdiction to review a delegate's decision twice.
The Tribunal also stated that even if circumstances in an applicant's country of origin had changed, this did not provide a basis for the Tribunal to accept a second review application or to reconsider the delegate's decision. It referred to a list of authorities in support of those propositions. In the circumstances of the case it found that the decision of the delegate of 28 January 1998 was an RRT reviewable decision but that the applicant had previously lodged an application for review of that decision which had been accepted by the Tribunal which had conducted a review. Hence the Tribunal had already discharged its functions under s.414 to review the decision and no longer had jurisdiction to review that decision.
As indicated, the applicant sought review of that Tribunal decision by application filed in this Court on 6 August 2007. That application relied on four generally expressed grounds that the Tribunal failed to act according to law and regulation, did not apply the correct laws, did not accord natural justice and failed to exercise its jurisdiction under the Migration Act.
After the first respondent filed an application seeking summary dismissal the applicant filed an amended application. The submissions for the first respondent have addressed the grounds raised in the amended application, which are that the Tribunal failed to exercise its jurisdiction in that it failed to apply the appropriate law and failed to understand that it had jurisdiction to consider the case; that it did not consider the change of circumstances in the applicant's country of origin that increased the risk to him; and that it and did not accord him natural justice in that it did not ask him for any written comment as to how his life would be in more danger and risk because of the changed circumstances.
Summary dismissal is sought first on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.
It is clear that the Tribunal's conclusion that as there had been a prior review of the delegate's decision it no longer had jurisdiction to review that decision because it had discharged its functions under the Migration Act to carry out such a review was correct, see Jayasinghe and also SZASP v Minister for Immigration and Citizenship [2007] FCA at 771 at [4] and cases cited therein.
The applicant's claim in his application and amended application that the Tribunal failed to apply the appropriate law when it had jurisdiction is not such as to establish the Tribunal's conclusion in this respect was anything other than correct. Insofar as there is a general expressed claim of a denial of procedural fairness, the Tribunal was not under an obligation to invite the applicant to a hearing in relation to the preliminary issue before it of whether it had jurisdiction.
The second ground in the amended application is that the Tribunal erred in failing to consider the change of circumstances in Bangladesh. Reliance appears to be placed on s.416 of the Migration Act. Section 416 provides relevantly that if a non-citizen who has made an application for review of an RRT reviewable decision that has been determined by the Tribunal makes a further application for review of such a decision, the Tribunal in considering the further application is not required to consider any information considered in the earlier application and may have regard to and take to be correct any decision that the Tribunal made about or because of that information.
Section 416 would not assist the applicant in the circumstances of this case. As Moore J stated in SZASP v Minister for Immigration and Citizenship [2007] FCA 771, in circumstances where a Tribunal had found that it had no jurisdiction to review the decision of a delegate which had already been the subject of an earlier Tribunal decision, “s.416 cannot apply in such circumstances” (at [17]).
His Honour went on to explain the circumstances in which s.416 could apply. This is not such a case. As the Tribunal correctly found that it had no jurisdiction, it was not under an obligation to consider the change of circumstances in Bangladesh. As it stated in its reasons for decision, even if circumstances had changed in the applicant's country, this did not provide a basis to accept a second review application or to reconsider the delegate's decision.
Finally, the applicant contended that the Tribunal did not accord him natural justice because it did not invite him to provide written comments on how his life would be in more danger and risk because of the change in circumstances. However, as the Tribunal had no obligation to consider a change of circumstances in the circumstances of this case, it cannot be said that such a ground provides any basis for review of the Tribunal decision.
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. As a matter of principle an order which prevents a 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], and see the discussion of the test now applicable under r.13.10a (in s.31A of the Federal Court of Australia Act1976) by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352.
In this case, however, I am satisfied for the reasons set out above that the application for review of the second Tribunal decision is bound to fail, (also see White Industries Australia Ltd v The Commissioner for Taxation [2007] FCA 511 at [45] - [60]). There has been no argument put before the Court by the applicant and 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.
As I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting the proceeding, his application in this Court should be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules. Hence it is not necessary for the Court to determine whether the proceedings are also an abuse of process in the manner discussed by Moore J in SZASP.
The applicant has been unsuccessful in that his application is to be dismissed and the first respondent seeks that he pay costs in the sum of $3,750. While I accept that some additional work was necessitated by the nature of the material that needed to be put together by way of evidence before the Court in support of the summary dismissal application I also note r.44.15(1) would provide for costs in the sum of $2,500 in a case such as the present.
While costs greater than those that might be incurred in other matters concluded prior to a final hearing have properly been incurred in this case, I am not persuaded that such costs should include the costs of preparation of a second affidavit relied on by the first respondent necessitated by an error in the first affidavit. In all the circumstances of the case, and given that it is appropriate to order that costs be paid in a fixed amount, I consider that an amount of $3,000 is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
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