S247 of 2003 v Minister for Immigration

[2006] FMCA 1433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S247 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1433

MIGRATION – Jurisdiction – application for review of Refugee Review Tribunal decision where Court has no jurisdiction – application is out of time – abuse of process.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 r.44.11, 44.12

Jayawasinga v Minister for Immigration (1996) 76 FCR 301
SZIIV v Minister for Immigration & Anor [2006] FMCA 322

Applicant: APPLICANT S247 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2272 of 2006

Judgment of: Scarlett FM

Hearing date: 11 September 2006

Date of Last Submission: 11 September 2006

Delivered at: Sydney

Delivered on: 11 September 2006

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Applicant: Christopher Levingston & Associates (amicus)

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to Rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there be an immediate hearing under Rule 44.12

2. The application be dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. No further application for review of any decision made by either of the Respondents relating to or connected with the Applicant’s application for a protection visa, originally made on 28 September 1992 be accepted for filing by the Court registry, except by leave of the Court.

4. The Applicant is to pay the First Respondent’s costs and disbursements fixed in the sum of $350.00.

5. The waiver of the hearing fee made on 16 August 2006 is revoked.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2272 of 2006

APPLICANT S247 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 2^nd August 2006. 

2. The Tribunal decided that it does not have jurisdiction in the matter.  The applicant now seeks a review of that decision.

3. There are three grounds set out in the application. First, the failure to accord natural justice; (2) error of law, being jurisdictional error in that the Tribunal is said to have identified the wrong issue to determine the case; and third, a failure to exercise its jurisdiction under the Migration Act, or in excess of jurisdiction.

4. The orders that are sought are for orders of writs of mandamus certiorari and prohibition.

5. The application shows on its face that the applicant has made a previous application to review a decision of the Refugee Review Tribunal.  There was an application to the Federal Court which was made in 1993.  That application clearly refers to an earlier decision of the Tribunal.

6. What happened is that as the applicant's pseudonym, Applicant S247 of 2003 indicates the applicant commenced proceedings in the High Court of Australia for orders nisi.  Those proceedings were remitted to the Federal Court; the Federal Court dismissed the application

   
   

   21^st October 2005.

7. The applicant sought leave to appeal on 9^th March 2006, and that application was dismissed.

8. What the applicant has done is apply to the Tribunal for a review of the Delegate's decision, which was made on 17^th February 1993.  

   
   

   The applicant applied to the Tribunal on 30^th March for review of that decision.

9. The fact is that the Tribunal has already reviewed the decision, and the proceeding has gone through the Court process in the High Court, and then by remission to the Federal Court, an application for leave to appeal. 

10. The application for review of the decision is, in my view, out of time.  It is also an application for a second review of the same Delegate's decision.  Quite clearly, the Tribunal is functus officio. 

11. I have been referred to the decision of Driver FM in SZIIV v Minister for Immigration & Anor [2006] FMCA 322. In my view, his Honour's decision is essentially on all fours with this decision. As his Honour found at paragraph 10:

    Secondly, the RRT found that in any event it had no jurisdiction to review a Delegate's decision twice.  That is undoubtedly correct where the first RRT decision is validly made; see Jayawasinga v Minister for Immigration (1996) 76 FCR 301, in particular at page 311.  Simply put, the RRT was functus officio after it had reviewed the Delegate's decision for the first time.

12. In my view, that is the situation here.

13. A further attempt at a review of a decision of a Delegate that has already been reviewed is an exercise in futility, as Mr Prince, who appeared amicus for the applicant today, indicated.  It is also an abuse of the process of the Court.

14. In my view, the application should be dismissed with costs. I note that on 16^th August 2006 the applicant was successful in having the filing fee waived.  In my view, it is inappropriate for a filing fee to continue to be waived in respect of an application which is an abuse of process.

15. I propose to dismiss this application on the basis that it is an abuse of process, and I note that an amount of costs is sought in the sum of $350.00. I consider this an appropriate amount.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  22 September 2006