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

1. 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.

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

3. 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

4. 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)

1. 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.

2. 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.

3. 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 on 25 July 2003.  After several interlocutory steps the Court dismissed that application on 7 April 2004[1].  In paragraph 18 of her judgment, Barnes FM found that there was no jurisdictional error in the decision of the Tribunal and that accordingly the application must be dismissed.  The applicant appealed to the Federal Court against Barnes FM’s decision on 29 April 2004.  On 20 July 2004 Bennett J dismissed the appeal with costs[2].  At paragraph 28 of her judgment her Honour found no error in the decision of Barnes FM.  On 16 August 2004 the applicant applied for special leave to appeal to the High Court.  On 21 April 2005 McHugh and Heydon JJ dismissed that application. 

   [1] SZBAE v Minister for Immigration [2004] FMCA 311

   [2] SZBAE v Minister for Immigration [2003] FCA 965

4. The applicant then applied to the Tribunal a second time on 19 February 2007.  In its decision made on 5 April 2007 the Tribunal noted the earlier judicial review of the first Tribunal decision and correctly found that it lacked jurisdiction.

5. The issue of the jurisdiction of the Tribunal in these circumstances has now been dealt with in this Court and the Federal Court on many occasions. Perhaps with that in mind, the Minister’s response filed on 17 May 2007 sought dismissal of the application pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) or, in the alternative, sought dismissal pursuant to rule 13.10(a), (b) or (c) of the Federal Magistrates Court Rules. I satisfied myself that the Minister’s response had been served on the applicant (see exhibit R1), although the applicant could not recall receiving it. I adjourned temporarily while the Minister’s response was read to the applicant. I invited the applicant to submit any reason why I should not proceed immediately to a show cause hearing, but he offered no reason. I ordered an immediate hearing under rule 44.12 pursuant to rule 44.11(a) of the Federal Magistrates Court Rules.

6. I am bound by the decision of Bennett J that the earlier decision of Barnes FM was free from error.  The decision of Barnes FM was that the first decision of the Tribunal was free from jurisdictional error.  That being so, the Tribunal was plainly correct in finding that it lacked jurisdiction.  Once a Tribunal validly reviews a delegate’s decision it is functus officio[3].

   [3] SZDMO v Minister for Immigration [2006] FCA 989 at [6]

7. The present application before the Court is doomed to fail. Because there is no arguable case of error in the Tribunal decision, I order that it be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

8. I also find that the present application before the Court is an abuse of process.  It ought now to be well understood, following repeated decisions of this Court and the Federal Court, that a tribunal cannot validly review a decision of a delegate more than once.  Such applications not only abuse the process of this Court, but also abuse the process of the Tribunal.  It smacks of a tactic designed to occupy time.  The applicant should be prevented from filing further applications without leave of the Court.  I will order that no further application by this applicant to review a decision of the 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.

9. As to costs, the applicant should pay the Minister’s costs on an indemnity basis.  Those costs are assessed by the Minister’s solicitor at $1,400.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis in the sum of $1,400.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 June 2007