S227 of 2003 v Minister for Immigration

Case •

[2007] FMCA 1508

•

17 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S227 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1508
MIGRATION – Review of Refugee Review Tribunal decision – application for review to the Tribunal not valid – Tribunal functus officio – Tribunal lacked jurisdiction – no reasonable cause of action – application dismissed.
Migration Act 1958, ss.66(2)(d)(ii), 412(1)(b), 17A, 412, 414, 425
Federal Magistrates Court Act, s.17A
Migration Regulations 1994, reg. 4.31
[The applicant] v Minister for Immigration & Multicultural Affairs [2001] FCA 205
Applicant S227/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 983
S227 of 2003 v Minister for Immigration & Anor [2007] FMCA 109
[The applicant] v Minister for Immigration & Multicultural Affairs [2001] FCA 205
Applicant S227/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 983
Applicant S1174 of 2002 v RRT [2004] FCA 289
SZCEM v Minister for Immigration & Citizenship [2007] FMCA 1233
SZIIV v Minister for Immigration & Multicultural Affairs [2007] FMCA 322 SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Xie v Immigration Department [1999] FCA 365
Applicant A175/2002 vMinister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 829
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Walton v Gardiner (1993) 177 CLR 378
Applicant: APPLICANT S227 of 2003
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1340 of 2007
Judgment of: Nicholls FM
Hearing date: 17 August 2007
Date of Last Submission: 17 August 2007
Delivered at: Sydney
Delivered on: 17 August 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr A Markus
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration & Citizenship”.

  2. The application is dismissed pursuant to Rule 13.10(a) and Rule 13.10(c) of the Federal Magistrates Court Rules 2001.

  3. The Registry of this Court not to accept for filing any application for review by the applicant in relation to:

    (a)The decision of the delegate of the respondent Minister dated 15 March 1999; or

    (b)The decision of the second respondent, the Refugee Review Tribunal, made on 26 June 2000 and handed down on 12 July 2000; or

    (c)The decision of the second respondent, the Refugee Review Tribunal made on 4 April 2000; or

    (d)Any other decision relating to the applicant’s application for a protection visa made on 16 February 1999 without the prior leave of this Court.

  4. The applicant pay the first respondent’s costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1340 of 2007

S227 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT


(Ex Tempore: Revised from Transcript)

  1. I have before me an application filed in this Court on 27 April 2007, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 4 April 2007 that found that the Tribunal did not have jurisdiction to review a decision of the respondent Minister's Delegate made on 15 March 1999, which refused a protection visa to the applicant.

  2. By way of motion filed on 9 May 2007 (in this regard note also the Minister's response to the application filed on 3 May 2007), the Minister seeks summary dismissal of the application on the basis that variously, the claim for relief is an abuse of the processes of the Court or in the alternative, that it is frivolous or vexatious, and further in the alternative, that the application discloses no reasonable prospect of success.

  3. From the material before the Court, including the affidavit of Andreas Markus the solicitor in the employ of the Minister's solicitors affirmed on 8 May 2007 which was read into evidence today, it is clear that the Minister's response and motion are grounded in the following sequence of events:

    1)The applicant applied for a protection visa on 16 February 1999, which was refused on 15 March 1999. I put to one side the events that occurred prior to this, that is, that a previous application had been made in 1996 and withdrawn by the applicant.    

    2)The applicant sought review of the delegate’s decision by the Tribunal on 8 April 1999 and on 26 June 2000, the Tribunal, differently constituted, affirmed the delegate’s decision. The Tribunal decision was handed down on 12 July 2000 (“the ‘first’ Tribunal decision”).

    3)The applicant then sought judicial review in the Federal Court of Australia of the “first” Tribunal decision on or around 23 October 2000. On 5 March 2001, His Honour, Hill J dismissed the application ([The applicant] v Minister for Immigration & Multicultural Affairs [2001] FCA 205).

    4)On 24 April 2001, the applicant joined the “Lie” class action in the High Court of Australia as a represented party.

    5)Subsequently, on 27 March 2003, the applicant commenced proceedings in the High Court of Australia, challenging the “first” Tribunal decision. These proceedings were numbered S227 of 2003. Pursuant to orders made in the representative proceedings by Gaudron J on 25  November 2002, on filing these proceedings the applicant ceased to be a member of the representative proceedings and the application was remitted to the Federal Court of Australia where it was given proceedings number NSD 1003 of 2003 (“the second Federal Court proceedings”).

    6)On 24 July 2006, the second Federal Court proceedings were heard by Cowdroy J. On 2 August 2006, His Honour dismissed the application with costs (Applicant S227/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 983).

    7)On 27 August 2006, the applicant commenced proceedings in this Court seeking review of the “first” Tribunal decision. On 2 February 2007, Barnes FM dismissed the application as incompentent (S227 of 2003 v Minister for Immigration & Anor [2007] FMCA 109).

    8)On 27 April 2007, the applicant purported to make a further application to the Tribunal for review of the delegate’s decision, which had previously been the subject of review by the Tribunal in the “first” Tribunal decision.

    9)On 4 April 2007, the Tribunal found that it did not have jurisdiction in relation to the applicant’s application (“the ‘second’ Tribunal decision”).

    10)The present application which was filed on 27 April 2007 seeks review of the “second” Tribunal decision.

  4. For the applicant, I also have before me, his two affidavits affirmed on 27 April 2007 and 12 July 2007. Various matters are asserted in these affidavits. The first affidavit of 27 April 2007 sets out some of the history but essentially attaches a copy of the “second” Tribunal decision. The second affidavit of 12 July 2007 provides some matters of evidence. I also take into account those parts of that affidavit which are more properly understood as being submissions made by the applicant.

  5. The material before me today, including the Tribunal’s decision record, as attached to the applicant’s application of 27 April 2007, shows that the Tribunal identified the critical issue as being whether it had jurisdiction to review the delegate’s decision made on 15 March 1999, on the basis of the validity of the application for review lodged on 20 February 2007. In its decision record, the “second” Tribunal noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the delegate’s decision in question had already been reviewed by the “first” Tribunal. I note very clearly here that there is only one Tribunal but references to the “first” and “second” Tribunal are for the purposes of understanding.

  6. The Tribunal records that it wrote to the applicant on 2 March 2007 seeking comments on this preliminary view. It reports that the applicant made written submissions which were received by the Tribunal on 26 and 27 March 2007. This is confirmed by the applicant at ground 3 in his application to the Court.

  7. The Tribunal’s “Findings and Reasons” for its decision are at pages 3 and 4 of its decision record as attached to the applicant’s affidavit filed on 27 April 2007. The Tribunal found:

    1)The notice of the delegate’s decision incorrectly stated the time in which an application for review may be made to the Tribunal and therefore did not comply with s.66(2)(d)(ii) of the Act and it followed the applicant had not been validly notified. Therefore it found that time had not started to run for the purposes of the time limit in s.412(1)(b) and Regulation 4.31 of the Migration Regulations 1994 (“the Regulations”).

    2)On this basis, the applicant lodged an application for review within the time limit (wrongly specified in the notification letter) and the Tribunal accepted that application and conducted a review.

    3)It had already discharged its functions under the Act to review the delegate’s decision of 15 March 1999.

    4)It noted that the applicant had unsuccessfully sought judicial review of the Tribunal’s earlier decision ([The applicant] v Minister for Immigration & Multicultural Affairs [2001] FCA 205 (5/3/01); Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 (Applicant S1933 in what was known as the Muin & Lie class action)(20/2/04); Applicant S227/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 983 (2/8/06); S227 of 2003 v Minister for Immigration & Multicultural Affairs & Anor [2007] FMCA 109 (2/2/07)).

    5)Plainly turning its mind to the applicant’s submission received on 26 March 2007, it noted the applicant’s submission that there was a real chance that he would face persecution if he returned to Bangladesh. It further noted that it had received a further document on 27 March 2007 which was provided in support of the applicant’s submission of 26 March 2007.

    In all the circumstances, the Tribunal found that as it had already discharged its functions under the Act to review the delegate’s decision of 15 March 1999, it no longer had jurisdiction in relation to that decision.

  8. In his application to the Court, the applicant sought review on the following grounds:

    “1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction not considering my fear of persecution for my political belief and refused my application.

    2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to call me for a hearing to give oral evidence in favour of my claims.

    3. The Tribunal made an error of jurisdiction nor considering the reasons of my application I have provided in the submission dated 26 March 2007 at the time of decision and refused my claims.

    4. The Tribunal failed to consider that the differently constituted Tribunal in its decision ‘findings and reason has harshly mentioned that I have no well founded fear of persecution for a convension reason in my previous country of residence, Bangladesh. The Tribunal found my application invalid without any valid reasons. The Tribunal totally ignored my fear of persecutions related to political profile and it is an error of jurisdiction.”

  9. At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Bengali language. Mr Markus appeared for the respondent Minister.

  10. Essentially, Mr Markus’ submissions were quite naturally directed to this Court’s rules and in particular, Rule 13.10 of the Federal Magistrates Court Rules 2001. Firstly, Mr Markus noted s.17A of the Federal Magistrates Act 1999, that the relevant test for summary dismissal being sought by the Minister today was in relevant senses different to earlier tests of general law, the requirement being that the application, for want of better words, was doomed to fail. Mr Markus noted that the current test was that there was no reasonable prospect of successfully prosecuting the proceedings. In any event, and in my view correctly, Mr Markus submitted that even as against the test of the application being doomed to fail, the current application would have met the requirements of that test.

  11. The Court was referred to a number of authorities by Mr Markus, including SZCEM v Minister for Immigration & Citizenship [2007] FMCA 1233 (“SZCEM”), SZIIV v Minister for Immigration & Multicultural Affairs [2007] FMCA 322 (“SZIIV”), SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989 (“SZDMO”), Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 (“Jayasinghe”).

  12. The argument put before the Court was in its simplest form that there was no reasonable prospect of successfully prosecuting the proceedings and with reference to the relevant authorities, the Tribunal finding that, in a sense, it was functus officio after the review on the first occasion was correct. Further, with reference to the authorities and with particular reference to the relevant statutory regime that applies to matters of this type, the Tribunal cannot review the same delegate’s decision on a second occasion. I note in particular references SZDMO per Rares J at [6], where in similar circumstances to those before the Court now, the Tribunal found that it had no jurisdiction because it was functus officio, and at [8] of that judgment, that no arguable case can arise in such circumstances. I accept the submissions made by Mr Markus in this regard.

  13. I cannot see that there is any reasonable prospect of successfully prosecuting these proceedings, for all the reasons that have been submitted and with reference to the relevant authorities, but note that even with reference to tests in earlier legal context, that is, tests as against whether there is a reasonable basis even for the present application, and with reference to SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959, the application that the applicant has sought to put before the Court today is so clearly untenable that it cannot possibly succeed.

  14. Indeed I even note, and again, being mindful that the test before the Court today that the Court applies is the no reasonable prospect of successfully prosecuting the proceedings test, but even if the more difficult test of “doomed to failure” were to be applied, with reference to Xie v Immigration Department [1999] FCA 365 and Applicant A175/2002 vMinister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 829, in my view the applicant’s application before the Court today would even fail as against that test.

  15. But simply, applying the test that reflects the current statutory and legal test, the Tribunal correctly found that it lacked jurisdiction to review the applicant’s application pursuant to s.412 of the Act. The Tribunal was functus officio in that having already conducted the review under the Act, there was no further function for it to conduct a second review (see Jayasinghe at 311). Therefore, the Tribunal correctly found that it lacked jurisdiction to review an already validly reviewed delegate’s decision.

  16. I note in this regard that the applicant had already sought, and been given a review on the merits of, the delegate’s decision and that the “first” Tribunal decision has been the subject of judicial review, and has not been set aside, such as to now say that there was no decision in law and that the review was not completed. In these circumstances, the Tribunal had no jurisdiction to review the delegate’s decision for a second time. The review of the delegate’s decision which the Tribunal was required, and is required to conduct pursuant to s.414 of the Act, was in fact conducted and finalised.

  17. Turning specifically now to look at the complaints as put by the applicant before this Court, in relation to ground 1, the applicant has not provided particulars as to how the Tribunal “exceeded its jurisdiction or constructively failed to exercise its jurisdiction not considering my fear of persecution for [his] political belief”. To the extent that this is a complaint that the Tribunal did not review the merits of the applicant's claim to be a refugee, then this ignores the issue which the Tribunal brought to the applicant's attention, and that is the threshold issue of its jurisdiction to do so, or lack of jurisdiction to do so, for a second time.

  18. Nor can I see that the Tribunal, to use the applicant's words, "ignored the merits" in the sense as this phrase can be said to relate to what it properly identified as the threshold issue of jurisdiction. If the applicant is meaning to say that he was denied the opportunity of being heard in relation to his claims to be a refugee, that is his claim to fear persecution if he were returned to Bangladesh, then this was an opportunity that was provided before the “first” Tribunal. In the alternative, if what is meant is that the applicant was not given the opportunity, or should have been given the opportunity to come to a hearing before the Tribunal for a second time, in relation to the issue of jurisdiction, then such a complaint is misconceived.

  19. Plainly, on the issue of jurisdiction, the Tribunal discharged its obligations to act in a manner that was procedurally fair to the applicant when it provided him with the opportunity to comment on the preliminary view that it had formed in relation to the issue of jurisdiction and in this regard, in relation to ground 2, I cannot see that the applicant was denied, as he says, his hearing rights in the sense that the Tribunal failed to call him for a hearing.

  20. In the circumstances, the Tribunal was under no obligation to invite the applicant to a hearing pursuant to s.425 of the Act, given that it had found that it had no jurisdiction to proceed. In that very real sense, the provisions set out in Division 4 of Part 7 of the Act do not apply.

  21. In relation to ground 3, again there is no evidence before the Court that the Tribunal did not consider the reasons of his application as provided in the submission dated 26 March 2007. In fact, the evidence before the Court by way of the decision record which the applicant himself has put before the Court, is that the Tribunal did consider both the submissions and the letter that it received in support of the applicant's submissions. It was plainly open for the Tribunal on what was before it to find that it could not accept that these submissions or the letter in support provided any basis for accepting the review application. If what the applicant is really complaining of is that the Tribunal did not consider the issue of claimed persecution then, plainly the Tribunal could not do so given its finding in relation to its lack of jurisdiction.

  22. Nor is the complaint as set out in ground 4, in my view, made out.  The Tribunal did give valid reasons for its finding that it lacked jurisdiction in the sense that what it found in the circumstances was, in my view, plainly correct. The problem for the applicant, as I put to him during the course of the hearing today, is that having had one opportunity at a review on the merits of his claims to be a refugee, then in the circumstances that were before the Tribunal on the second occasion, when he attempted to re-agitate this claim before it, the Tribunal was simply unable to do what the applicant wished it to do, which was to re-visit the very question that it already had considered and determined at an earlier occasion.

  23. To the extent that the applicant seeks that the Court today to look at the issue of whether he is a refugee or not, and in relation to the applicant's very clear submissions to the Court that he is a refugee, then the Court simply has no power to entertain such consideration. Further, to the extent that the applicant in some indirect way seeks review of the “first” Tribunal decision on the basis that the applicant asserts that he is a refugee, then of course with reference to well established authorities, (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), this Court simply has no power to conduct a merits review of that type.

  1. In his affidavit of 12 July 2007, the applicant makes some very clear complaints about what he says the Minister’s delegate did and also what the Minister’s delegate failed to do in considering the application for a protection visa.  I note in that regard, that putting aside the issue of the Court's jurisdiction to review the delegate's decision, even if there were any defects in what the delegate did, on well established authority, any such defects would have been cured by the subsequent review conducted by the Tribunal. Further, this was a review which has been the subject of subsequent judicial review and on what has been put before me today has not been quashed or set aside and still stands.

  2. The applicant's complaint, that the Tribunal should have considered his refugee claims, as is emphasised in the applicant's affidavit and as was emphasised by the applicant himself before the Court today, cannot be made out, such as to deny the Minister the orders that are sought today, as the Tribunal, simply, was unable to revisit for a second time the merits of the applicant's claims to be a refugee.

  3. Simply put, I can see no error in what the Tribunal has done or what the Tribunal has concluded in terms of its finding that it lacked jurisdiction to hear the applicant's complaint about the delegate's decision for a second time. As I have already stated, there is no reasonable prospect of the applicant successfully prosecuting the claim that he has put before the Court today and for those reasons the applicant to the Court is dismissed pursuant to Rule 13.10A of the Federal Magistrates Court Rules 2001.

  4. I also accept submissions made by Mr Markus that these proceedings are an abuse of the processes of the Court. In this regard, I note and take into account reference to authorities to which I have been referred today, including references to SZIIV at [12], SZDMO at [8], SZCEM at [8], which all clearly state propositions applicable to the circumstances before me now.

  5. I accept the submission, that the history of what has been put before the Court today is such that, while notwithstanding the applicant’s submission to the Court and his (strongly) stated belief that he is a refugee and entitled to protection, that the intention of the applicant, given the long history of what has occurred before the Tribunal and before the Courts, is plainly an attempt to delay and extend his presence in Australia without any foundation to any belief that he indeed does have a right to the relief that he seeks.

  6. I note also in the context of an abuse of process, in addition to the authorities which have been referred today by Mr Markus, that it has often been held in Australian Courts that the attempt to re-litigate the same application for relief is an abuse of process and certainly within the meaning of that term as discussed by the Court in Walton v Gardiner (1993) 177 CLR 378. In that case, the Court found that it could still be an abuse of process where an applicant has sought to re-litigate anew a case which has already been disposed of by earlier proceedings.

  7. What I draw from this is that when the circumstances before the Court today are properly considered, and indeed as is reinforced by the applicant's own words in the affidavit of 12 July 2007, what the applicant is still concerned about today is to re-agitate the original Delegate's decision of 1999 and the Tribunal decision that immediately followed in 2000. Having sought through judicial proceedings to overturn that unfavourable outcome unsuccessfully, the applicant sought to recommence the process before the Tribunal anew but in circumstances where he had clearly exhausted on a number of occasions a variety of legal avenues which all resulted in an unfavourable outcome to him. There must be some finality to this matter and in that sense, the applicant's refusal to accept this (I note that whilst it is open to him not to accept it in the sense that he may continue to feel aggrieved), and his seeking to re-agitate the matter in the way that he has, clearly in my view is, in addition to the submissions which I have already accepted made by Mr Markus, yet another indicator of the abuse that the applicant perpetrates on the processes of this Court.

  8. For those reasons therefore, it is also appropriate that I make the orders sought by the Minister relating to the applicant being prevented from further seeking to abuse the processes of the Court by restricting the applicant's opportunities to continue to file matters in this Court that relate to the decision of the delegate, the decision of the Tribunal made in June 2000 and the decision of the Tribunal made in April 2007, and indeed any other decision arising from the protection visa application originally lodged in February 1999, without first seeking leave of the Court to do so.

  9. So I will make the order dismissing the application on the basis that the proceeding has no reasonable prospect of successful.  I will make the order relating to the future filing of applications before this Court.

  10. Further, in relation to the issue of costs, the first issue is whether a costs order should be made and in that regard none of the circumstances raised by the applicant today would argue against such an order being made. I hear the applicant's assertion that he is a refugee but I am guided by the fact that he has not been determined to be such pursuant to the relevant laws of this country. Secondly, I understand that the applicant is not working and thereby has insufficient funds. But again, this is not such a matter as would cause a costs order not to be made.

  11. So it is appropriate that an order for costs be made in the circumstances. The Minister sought an amount of $2,500. Putting to one side the issue that this is sought on an indemnity basis, on the basis of whether this is a reasonable amount in all the circumstances of the work that the Minister has done in responding to the application that has been put before the Court then the amount sought is, in my view, a reasonable amount and I do not make such an order on an indemnity basis, although I note that having clearly found that this proceeding was an abuse of the processes of the Court it would have been open to have done so.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls  FM

Associate:  Dawnie Lam

Date:  17 September 2007

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Cases Citing This Decision

1

Applicant S227 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1997