SZBAE v Minister for Immigration - [2007] FMCA 812

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 812

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal finding it had no jurisdiction as a tribunal had previously reviewed the delegate’s decision – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)

SZBAE v Minister for Immigration [2004] FMCA 311
SZBAE v Minister for Immigration [2003] FCA 965

SZDMO v Minister for Immigration [2006] FCA 989

Applicant:

SZBAE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1331 of 2007

Judgment of:

Driver FM

Hearing date:

29 May 2007

Delivered at:

Sydney

Delivered on:

29 May 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Palmer
Sparke Helmore

INTERLOCUTORY ORDERS

Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), that there be an immediate hearing under rule 44.12 of the Federal Magistrates Court Rules.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that no further application by this applicant to review a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his protection visa application filed on 23 April 2002 be accepted for filing in this Court except by leave of the Court
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, in the sum of $1,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1331 of 2007

SZBAE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 26 April 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application asserts actual notification of the Tribunal decision on 8 April 2007. On that basis I find that the application was filed within time. The application is supported by a short affidavit which provides some basic facts and annexes the decision of the Tribunal.
The Tribunal found that it had no jurisdiction to review the decision of the delegate. The reason was that the delegate’s decision had previously been reviewed by the Tribunal. Further, that earlier Tribunal decision had been unsuccessfully reviewed by the applicant in this Court and on appeal in the Federal Court and the High Court.
A chronology was presented in court this morning by the solicitor for the Minister. The applicant is from Bangladesh and arrived in Australia on 10 March 2002. He applied for a protection visa on 23April 2002. The delegate refused that application on 27 June 2002. The applicant applied to the Tribunal for the first time on 5 August 2002. The Tribunal conducted a hearing on 7 May 2003 and handed down its decision on 1 July 2003. The applicant applied for judicial review of that decision in this Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 812
Decision Date: 29 May 2007

CaseChat Overview and Summary

In the matter of SZBAE v Minister for Immigration & Another, the applicant, SZBAE, sought a review of a decision made by the Refugee Review Tribunal. The Tribunal had determined that it lacked jurisdiction to review a previous decision of a delegate, as it had already been reviewed by the Tribunal. SZBAE had previously sought judicial review of the Tribunal's earlier decision in the Federal Magistrates Court, Federal Court, and the High Court, all of which had dismissed the application on the basis of no jurisdictional error. The Tribunal's latest decision, finding it lacked jurisdiction, was again challenged by SZBAE. The Federal Magistrates Court was required to determine whether the Tribunal had jurisdiction to review the delegate's decision and whether the application constituted an abuse of process.

The Federal Magistrates Court found that the Tribunal's earlier decision was correctly made, and the Tribunal was correct in finding that it lacked jurisdiction to review the delegate's decision after it had already been reviewed. The Court held that once a Tribunal validly reviews a delegate’s decision, it is functus officio, meaning it cannot revisit the same decision. Given the repeated unsuccessful attempts by SZBAE to challenge the Tribunal's decision, the Court found that the application was an abuse of process. The Court dismissed the application and ordered that no further applications by SZBAE relating to his protection visa application filed on 23 April 2002 be accepted without leave of the Court. Additionally, the Court ordered SZBAE to pay the Minister's costs and disbursements on an indemnity basis, amounting to $1,400.

Orders