SZAYI v Minister for Immigration

[2007] FMCA 1466

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1466

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse a protection visa to the applicant – repeat application – Tribunal functus officio – Tribunal had no jurisidiction.

PRACTICE & PROCEDURE – abuse of process.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.412, 474.

SZAYI v Minister for Immigration [2004] FMCA 896
SZAYI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1724

Applicant: SZAYI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1150 of 2007

Judgment of: Scarlett FM

Hearing date: 16 August 2007

Date of Last Submission: 16 August 2007

Delivered at: Sydney

Delivered on: 16 August 2007

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Kantaria

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1150 of 2007

SZAYI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application for a review of a decision of the Refugee Review Tribunal, which was signed on 16^th March 2007 and handed down on 19^th March 2007. The Tribunal decided that it did not have jurisdiction in the matter.  There were two reasons why the Tribunal decided that it did not have jurisdiction.

   a)

   First, that the application was out of time. It was outside the

   
   

   28 days prescribed, set out under s.412(1)(b) of the Migration Act,

   b)Second reason was that the Tribunal had already reviewed the delegate's decision.

2. The Applicant claims that the Tribunal failed to act according to Migration Law and Regulation and did not apply the correct laws when considering the matter; that it misinterpreted the migration laws, and that it failed to exercise its jurisdiction under the Migration Act. The difficulty for the Applicant is that the Tribunal did act according to the Migration Act.

3. In an outline of submissions prepared by solicitor for the Respondent Minister, Ms Kantaria, there appears a very helpful chronology by way of background. 

4. On 22^nd January 2002, the Applicant lodged an application for a Protection (Class XA) visa with the then Department of Immigration & Multicultural Affairs. On 15^th April 2002, a delegate of the Minister refused to grant the Applicant protection visa. The Applicant, then on 9^th May 2002, applied for the Refugee Review Tribunal for a review of that decision; and on 19^th June 2003, the Tribunal affirmed the delegate's decision not to grant the Applicant protection visa.

5. The Applicant then, on 15^th July 2003, commenced proceedings in this Court seeking judicial review of the Tribunal's decision. On 4^th November 2004, in the Federal Magistrates Court, Raphael FM dismissed the application for judicial review. The citation for that decision is SZAYI v Minister for Immigration [2004] FMCA 896.

6. The Applicant then appealed on 22^nd November 2004, and on 17^th December in that year, the late Hill J dismissed the appeal. The citation to that decision is SZAYI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1724. The Applicant sought special leave to appeal from the High Court of Australia on 14^th January 2005. On 18^th February in that year, the Registry issued a certificate of deemed abandonment, but the Applicant filed a further application for special leave on 1^st March 2005. 

7. On 16^th June in that year, the Honourable Gleeson CJ, Gummow J, dismissed the second application for special leave to appeal. The Applicant then commenced further proceedings in this Court seeking judicial review of the Tribunal's decision and that was done on

   
   

   29^th June 2005. 

8. On 22^nd November 2005, Phipps FM dismissed the application. 

   
   

   (See MZXBU v Minister for Immigration & Anor (MLG 773/2005).  The Applicant took no further action until on 6^th February 2007, he lodged a further application for review of the delegate's decision of the Tribunal. The Tribunal handed down its decision on 19^th March 2007 because it did not have jurisdiction to review the Applicant's further application. 

9. The fact is that when the Tribunal found that the Applicant was seeking review of the delegate's decision outside the 28 day prescribed period set out under s.412(1)(b). The decision was well and truly outside that time and, indeed, there can be no doubt that the Applicant had previously been notified of the delegate's decision. I have before me an affidavit of Saloni Kantaria, sworn on 13^th August 2007, in which she annexes a copy of the Applicant's original application for review to the Refugee Review Tribunal.

10. That application sought a review of the decision, dated 15^th April 2002. The application is clearly out of time and it has previously been held that the time limit in s.412 of the Migration Act is mandatory in its operation. In any event, the Tribunal is functus officio because it has already review the delegate's decision. 

11. The Applicant said that the conditions in Bangladesh have worsened in recent months and I see no reason to disbelieve that. Indeed, there are news reports in the media to indicate that the situation for citizens in Bangladesh from a political point of view is quite unpleasant.  It is not surprising that Bangladeshis living in Australia would be reluctant to return to Bangladesh at this time. But an application to the Refugee Review Tribunal to review a decision made five years earlier is not a proper way to achieve the Applicant's aim. 

12. It is not a proper way, any more than it repeated applications to the Court which are, of course, an abuse of process, are a  proper way to do things. It is not. They are an abusive process. The fact is that this application has no prospect of success.  The Tribunal correctly found that it had no jurisdiction and correctly found that it had no jurisdiction for two reasons: 

    i)The application was out of time under s.412; and

    ii)The Tribunal was functus officio. 

13. Whilst the proceedings in this matter have been conducted more in the nature of a Show-cause hearing than Final Hearing, they were listed as a Final Hearing, and it is my intention to deal with this matter on a final basis.  No jurisdictional error has been made out.  The Tribunal decision is a privative clause decision.  It is not subject to orders in the nature of certiorari or mandamus that the Applicant claims. The application will be dismissed.

14. There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim. This is a proper matter for an order for costs. The amount sought is $3,200.00 is within the scale provided by the Federal Magistrates Court Rules. I propose to make that order.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  23 August 2007