SZBQN v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 718

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as failing to disclose an arguable case – applicant attempting to obtain a second review of a delegate’s decision – RRT functus officio.

Federal Magistrates Court Rules 2001 (Cth)

SZBQN v Minister for Immigration [2005] FMCA 1297
SZBQN v Minister for Immigration [2005] FCA 1845
SZDMO v Minister for Immigration & Anor [2006] FMCA 617
SZIIV v Minister for Immigration & Anor [2006] FMCA 322

First Applicant:

SZBQN

Second Applicant:

SZBQO

Third Applicant:

SZBQP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1138 of 2006

Judgment of:

Driver FM

Hearing date:

19 May 2006

Delivered at:

Sydney

Delivered on:

19 May 2006

REPRESENTATION

Solicitors for the Applicants:

Mr D Prince, appearing as amicus curiae

Solicitors for the Respondent:

Ms F Kerr
Blake Dawson Waldron

INTERLOCUTORY ORDERS

Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1138 of 2006

SZBQN

First Applicant

SZBQO

Second Applicant

SZBQP

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application and its supporting affidavit filed on 13 April 2006 disclose that the decision of the RRT was made on 23 March 2006 and the applicant asserts notification of it on 25 March 2006. On that basis I find that the application was filed within time.
The decision sought to be reviewed is a decision of the RRT that it lacked jurisdiction because the delegate's decision had already been reviewed by an earlier tribunal and the decision of that tribunal had been found to be free from any jurisdictional error. This issue has arisen in this court several times previously. For example, I dealt with it in SZDMO v Minister for Immigration & Anor [2006] FMCA 617. As I made clear in that case and in the earlier case of SZIIV v Minister for Immigration & Anor [2006] FMCA 322, the RRT is correct in finding that it lacks jurisdiction in cases where a delegate's decision has previously been validly reviewed by a review tribunal.
Because it appeared to me that the application faced obvious difficulties I ordered an immediate show cause hearing pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The position in this case is that an earlier RRT had confirmed the relevant decision of the Minister's delegate to refuse the applicants' protection visas. The applicants had challenged that earlier RRT decision in this Court.
In SZBQN v Minister for Immigration [2005] FMCA 1297 Federal Magistrate Barnes found that the earlier RRT decision was free from any jurisdictional error. Her Honour's decision was confirmed on appeal in the Federal Court by Jacobson J in SZBQN v Minister for Immigration [2005] FCA 1845. It follows and I find that the RRT, having validly completed its function on the first occasion, was functus officio and there was no basis upon which the RRT could entertain the second review application.
I conclude that there is no prospect of success in the present application before the Court. It should therefore be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules and I will so order.
On the question of costs, the application having been dismissed, costs should follow the event. The Minister sought scale costs of $1,000. However, I note that in this matter no response had been filed by the Minister and it does not appear that any legal work of any consequence had been undertaken on behalf of the Minister, although she was represented at today's hearing. The disposition of the matter has been on the basis of my own efforts.
I will order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $500.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 May 2006

CaseChat Overview and Summary

In this case, the applicants, SZBQN, SZBQO, and SZBQP, sought a review of a decision made by the Refugee Review Tribunal (RRT) that they considered to be flawed. The Minister for Immigration & Multicultural Affairs and the RRT were the respondents. The matter was heard by the Federal Magistrates Court, with Driver FM presiding. The applicants aimed to challenge the RRT's decision that it lacked jurisdiction to review a delegate's decision that had already been reviewed and found to be free from jurisdictional error by an earlier tribunal.

The primary legal issue before the court was whether the RRT had the jurisdiction to review the delegate's decision a second time, given that it had already been reviewed and found to be free from any jurisdictional error by an earlier tribunal. This issue had been addressed previously in cases such as SZDMO v Minister for Immigration & Anor [2006] FMCA 617 and SZIIV v Minister for Immigration & Anor [2006] FMCA 322. The court had previously held that once a delegate's decision had been validly reviewed by a review tribunal, the RRT was functus officio and could not entertain a second review application.

Driver FM held that the RRT was correct in finding that it lacked jurisdiction in this case, as the delegate's decision had already been reviewed by an earlier tribunal and found to be free from any jurisdictional error. The earlier RRT decision, which was upheld on appeal, meant that the RRT had completed its function and could not review the decision a second time. Consequently, the application faced obvious difficulties and had no prospect of success. Therefore, the application was dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). The applicants were ordered to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $500.

The Federal Magistrates Court ruled that the Refugee Review Tribunal was functus officio, having already reviewed the delegate's decision and found it to be free from jurisdictional error. The court dismissed the applicants' application for a second review, as there was no basis for the RRT to entertain the application. The applicants were ordered to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established