S232 of 2003 v Minister for Immigration
[2006] FMCA 1532
•16 October 2006
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
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