S232 of 2003 v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S232 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1532

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – immediate show cause hearing on first return date of a show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant S232 of 2003 v Minister for Immigration [2005] FCA 1586
Applicant S232 of 2003 v Minister for Immigration [2006] FCA 207
SZDMO v Minister for Immigration [2006] FCA 989
SZIIV v Minister for Immigration & Anor [2006] FMCA 322

Applicant:

APPLICANT S232 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2728 of 2006

Judgment of:

Driver FM

Hearing date:

16 October 2006

Delivered at:

Sydney

Delivered on:

16 October 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms B Griffin
Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed pursuant to rule 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 $250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2728 of 2006

APPLICANT S232 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal found that it did not have jurisdiction in the matter. The decision was signed on 5 September 2006. The application asserts notification of that decision on 8 September 2006. The application was filed on 27 September 2006.
On 6 October 2006 the Minister filed a response to the application asserting that the application is out of time and is an abuse of process. I reject those contentions. I find that the application was filed within time. It is the first application this applicant has made to review this decision of the Tribunal. However, the Minister’s response revealed other problems with the application. In light of those problems and after inviting submissions from the parties I decided to hold an immediate show cause hearing in this matter.
The Tribunal found that it lacked jurisdiction in the matter because a previous Tribunal had reviewed the same decision of the delegate that the applicant sought review of before the Tribunal as currently constituted. I have on several previous occasions found that a tribunal may conduct only one review of a delegate’s decision provided that the Tribunal’s decision is valid: SZIIV v Minister for Immigration & Anor [2006] FMCA 322. There is no doubt that the first Tribunal’s decision on the review of the delegate’s decision was valid. The Federal Court has so found: Applicant S232 of 2003 v Minister for Immigration [2006] FCA 207 and [2005] FCA 1586. In SZDMO v Minister for Immigration [2006] FCA 989 at [8] the Federal Court dealt with a case indistinguishable from the present. The Federal Court agreed with my view that where a tribunal validly reviews a delegate’s decision once the Tribunal becomes functus officio. The Tribunal lacks jurisdiction should a second attempt be made to have it review the same delegate’s decision. Indeed, I regard such subsequent attempts as an abuse of the Tribunal’s process.
The Tribunal in this case was undoubtedly correct in finding that it lacked jurisdiction. The correctness of the Tribunal’s decision is the only issue arising in the present application. I accept that the application before the Court purports to raise other issues but there is no substance in any of them.
The application before the Court fails to disclose an arguable case.

I therefore dismiss it pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $250. The applicant did not wish to be heard on costs. I accept that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fixed in the sum of $250.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 October 2006

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of S232 of 2003 v Minister for Immigration and Multicultural Affairs and Another involved a review of a decision by the Refugee Review Tribunal regarding the refusal of a protection visa. The applicant contested the Tribunal's decision that it lacked jurisdiction to review the matter. The Tribunal had determined that it did not have jurisdiction because a previous Tribunal had already reviewed the same decision of the delegate. The applicant filed an application on 27 September 2006, asserting that the Tribunal's decision was made on 5 September 2006 and was notified to the applicant on 8 September 2006.

The legal issues before the court centred on whether the Tribunal's decision was correct in asserting that it lacked jurisdiction and whether the applicant's application was filed within the appropriate timeframe. The court also needed to consider whether the application raised any arguable case of jurisdictional error. The Minister for Immigration argued that the application was out of time and an abuse of process, but the court dismissed these contentions. The court found that the application was filed within the required timeframe and that it was the first application made by the applicant to review the Tribunal's decision.

The court's reasoning hinged on the principle that a tribunal may conduct only one review of a delegate’s decision provided that the Tribunal’s decision is valid. The previous Tribunal's decision on the review of the delegate’s decision was valid, as confirmed by the Federal Court. The court held that once a tribunal validly reviews a delegate’s decision, it becomes functus officio, and any subsequent attempts to review the same decision are an abuse of the Tribunal’s process. Therefore, the Tribunal's finding that it lacked jurisdiction was correct. The application before the Court failed to disclose an arguable case of jurisdictional error, leading the court to dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Costs were ordered to follow the event, and the applicant was directed to pay the Minister's costs and disbursements, fixed in the sum of $250.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established