SZAHH v Minister for Immigration

[2007] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 307

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether time for filing of application for costs by First Respondent be extended.

Federal Magistrates Court Rules 2001 r.44(12)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Act 1999 (Cth), s.17A

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration and Multicultural Affairs v Thiyagaraja (2000) 199 CLR 343

Applicant: SZAHH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2822 of 2006

Judgment of: Emmett FM

Hearing date: 23 February 2007

Date of last submission: 23 February 2007

Delivered at: Sydney

Delivered on: 19 March 2007

REPRESENTATION

Applicant appeared on own behalf

Solicitor for the Respondent: Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2822 of 2006

SZAHH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a hearing pursuant to Rule 44(12) of the Federal Magistrates Court Rules 2001 where the applicant seeks to persuade the Court that the application has raised an arguable case for the relief sought in the application filed in this Court on 3 October 2006.  That application sought judicial review of a second decision of the Refugee Review Tribunal (“the Second Tribunal”) dated 13 September 2006 and in respect of which the applicant was notified on 15 September 2006.

2. On 3 October 2006, the applicant filed an application seeking judicial review of the decision of the Second Tribunal in the following terms:

   “1. An order that the decision of RRT is invalid and has no effect and the matter remitted for further consideration according to law.

   2. The applicant is not removed from Australia until a decision is made.

   3. Costs.

   4. Such further and other orders as this Honourable court deems fit.”

3. The applicant attended a directions hearing on 7 December 2006 before me at which time the matter was set down this afternoon for a show cause hearing.  The applicant was given leave to file and serve an amended application together with any evidence upon which he sought to rely.   

4. On 9 February 2007 the applicant filed a written submission that appears to be in the nature of an amended application.  However, it does not address the decision of the Second Tribunal dated 13 September 2006, the subject of the review.  The grounds are directed to error in the decision of the first Tribunal hearing handed down on 25 February 2003 (“the First Tribunal Decision”).

5. The first respondent read the affidavit of Felicity Anne Kerr, sworn 14 November 2006, which annexed a copy of the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Delegate”) dated 5 June 2000 and the applicant's application to the Tribunal lodged on 15 June 2000 in respect of the Delegate's decision, together with a copy of that Tribunal's decision dated 30 January 2003 and handed down on 25 February 2003.

6. The first respondent also read the affidavit of Ishan Fuad Muthalib affirmed 19 February 2007.  Mr Muthalib's affidavit recited the litigation history through the Courts of the applicant and the first respondent and annexed relevant copies of Reasons and Orders made.  The applicant did not challenge Mr Muthalib’s affidavit.

7. Relevantly, Mr Muthalib’s affidavit disclosed the following:

   a)On 24 March 2003, the applicant sought judicial review by this Court of the First Tribunal Decision. On 30 October 2003, this Court dismissed that application finding that there were no grounds upon which it could be reviewed under s.39B of the Judiciary Act 1903 (Cth). Implicit in that finding was a finding that the First Tribunal Decision is not affected by jurisdictional error.

   b)On 18 March 2004, the Federal Court of Australia dismissed an appeal from this Court and found that the applicant had not been able to identify any error made either in the First Tribunal Decision or any error made by this Court in its decision dated 30 October 2003. 

   c)On 10 March 2005 the High Court of Australia dismissed an application for special leave to appeal the decision of the Federal Court.

   d)On 5 April 2005 the applicant filed a further application in this Court seeking review of the First Tribunal Decision.  That application was dismissed on 6 June 2005. 

   e)On 20 March 2006 the applicant applied to this Court again for a review of the First Tribunal Decision and that application was dismissed by this Court on 5 April 2006. 

   f)On 10 April 2006 the applicant lodged a second review application with the Tribunal seeking review of the Delegate's decision. 

   g)On 8 September 2006, in the Second Tribunal Decision, the Tribunal refused the application on the basis that it did not have jurisdiction to entertain the application in circumstances where there was no jurisdictional error in the First Tribunal Decision.

8. The authorities make it plain that where there has been a valid decision of an earlier Tribunal there is no jurisdiction left in the second Tribunal to reconsider an application for review of a delegate's decision.  I refer in particular to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603, Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 at 311 and Minister for Immigration and Multicultural Affairs v Thiyagaraja (2000) 199 CLR 343 at 355.

9. There has been a definitive decision that the First Tribunal Decision is not affected by jurisdictional error.  That decision has been held to be correct.  In those circumstances, there is no jurisdiction in the Second Tribunal to conduct another review of the Delegate’s decision.

10. Although, this matter was set down for a show cause hearing, pursuant to r.44.12 of the Federal Magistrates Court Rules, the First Respondent has led evidence and the matter has proceeded more in the nature of an application by the First Respondent for summary dismissal, in which case, the First Respondent has the burden of satisfying this Court that the applicant has no reasonable prospect of successfully prosecuting the proceeding (see s.17A Federal Magistrates Act 1999 (Cth)).

11. In the circumstances, I am satisfied that the application filed by the applicant in this Court on 3 October 2006, seeking judicial review of the second Tribunal's decision dated 13 September 2006, has no or no reasonable prospect of success.

12. Accordingly, the proceeding before this Court commenced by way of application filed on 3 October 2006 is dismissed. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  19 March 2007