SZBRB v Minister for Immigration & Anor
[2007] FMCA 1093
•10 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1093 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal had jurisdiction to consider application for review – whether Refugee Review Tribunal denied the applicant procedural fairness or natural justice – whether Refugee Review Tribunal’s decision affected by bias or apprehended bias – whether Refugee Review Tribunal was obliged to comply with s.416 of the Act – whether Refugee Review Tribunal failed to comply with s.424A of the Act. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.66(2); 416; 417; 422B; 424A; pt.8 div.2 Migration Regulations 1994 (Cth) reg.2.16 |
| Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FRC 301 Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZBRB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3307 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 July 2007 |
| Date of last submission: | 10 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2007 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3307 of 2006
| SZBRB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 31 October 2006 and handed down on 1 November 2006.
The Applicant was born on 13 April 1975 and claims to be from India and of Hindu faith (“the Applicant”).
On 8 June 2002 the Applicant arrived in Australia, having legally departed from Chennai Airport on a passport issued in her own name and a temporary business visa issued on 17 April 2002.
On 11 October 2002, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by elders in her village who she claimed were “depriving me of the basic human rights stating that I should be devoted to the village god and get married to the deity” and “[w]hen I refused the village elders they have attacked me with a cane and whatever is near to them at the time.”
On 29 October 2002, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 28 November 2002, the Applicant lodged with the Refugee Review Tribunal an application for review of the Delegate’s decision. On 25 August 2003, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa and handed down this decision on 18 September 2003.
The Applicant unsuccessfully sought judicial review of the decision of the Refugee Review Tribunal dated 25 August 2003 in the Federal Magistrates Court and the Federal Court of Australia. The Applicant also unsuccessfully sought intervention by the then Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s.417 of the Act.
On 5 September 2006, the Applicant lodged with the Refugee Review Tribunal a second application for review of the Delegate’s decision dated 30 October 2002.
On 31 October 2006, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) determined that it had no jurisdiction to hear the application for review of 5 September 2006.
On 13 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal proceeding
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Tribunal noted that the Delegate’s decision was notified to the Applicant by a letter dated 30 October 2002. The Tribunal was satisfied that the contents of the notification letter complied with the requirements of s.66(2) of the Act.
The Tribunal noted that the Applicant had lodged her application for review with the Refugee Review Tribunal on 5 September 2006, within the statutory time limit.
The Tribunal noted that the Applicant had provided submissions in support of her application for review in which she claimed a fear of persecution because of changed circumstances in regard to her sexual orientation if she were to return to India. However, the Tribunal found that such a claim did not provide any legal basis for the Tribunal to accept a second review application.
The Tribunal found it had no jurisdiction to review the Delegate’s decision because the Tribunal was functus officio where the Refugee Review Tribunal had completed a valid review, including a valid decision, dated 25 August 2003.
The Tribunal concluded that, because it had already discharged its functions under the Act to review the Delegate’s decision, the second application for review “is not a valid application because the Tribunal no longer had jurisdiction in relation to that decision.”
The proceeding before this Court
The Applicant was unrepresented before this Court.
The Applicant confirmed that she relied on an amended application filed on 22 February 2007. However, the Applicant had nothing to say in support of any of the grounds or in support of her application generally beyond what was in her amended application.
The grounds of the amended application are a mixture of assertions of error and submissions.
However, from reading the amended application, the grounds may be distilled as follows:
a)Denial of procedural fairness and natural justice;
b)Breach of s.416 of the Act; and
c)Breach of s.424A of the Act.
Ground 1 – alleged denial of procedural fairness and natural justice
The Applicant’s grounds appear to allege that there had been a denial to the Applicant of natural justice because the Tribunal was biased or that there was an apprehension of bias.
To the extent that Ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 14 December 2006 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 22 February 2006. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No evidence was filed by the Applicant.
The Tribunal carefully set out the Applicant’s procedural history with her applications to the Refugee Review Tribunal for review of the Delegate’s decision dated 29 October 2002 and the relevant law. It noted the substance of the Applicant’s claims and explained why it had no jurisdiction to consider them.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. In particular, in accordance with the submission of the First Respondent, “There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115])”.
Accordingly, the allegation of bias or apprehended bias is rejected.
Otherwise, s.422B of the Act states that pt.7 div.4 is an exhaustive statement of the natural justice rule. The Applicant did not allege any breach of natural justice or procedural fairness other than the allegation of bias or apprehended bias and no breach of procedural fairness or natural justice is apparent from the Tribunal’s decision, including the conduct of its review.
Ground 2 – alleged breach of s.416 of the Act
The Applicant’s allegation of a breach of s.416 of the Act is misconceived in that s.416 is relevant only to a review of “an RRT reviewable decision”. The Delegate’s decision that the Applicant was seeking to have the Tribunal review again had already been the subject of a valid review. In the circumstances, the Delegate’s decision was no longer an “RRT reviewable decision” (see s.411 of the Act).
Where the Tribunal has performed its statutory function there is no further function or act for the person authorised under the statute to perform. (Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FRC 301 at 311)
In the circumstances, the Tribunal’s conclusion that it had already discharged its function under the Act to review the Delegate’s decision and therefore the application for review was not a valid application because the Tribunal no longer had jurisdiction in relation to that decision, is without error.
Accordingly, Ground 2 is not made out.
Ground 3 – alleged breach of s.424A of the Act
The Applicant’s grounds appear to allege that the Tribunal breached its obligations under s.424A of the Act in that it did not put adverse issues to the Applicant for comment.
Such a complaint is misconceived in that the Tribunal found that it did not have jurisdiction in relation to the decision because it was functus officio. In the circumstance, there was no information that enlivened the obligations of s.424A of the Act.
Accordingly, ground 3 is rejected.
Conclusion
As stated above in these reasons, there is no error in the Tribunal’s decision that it did not have jurisdiction to review the Delegate’s decision dated 29 October 2002 where there had been an earlier valid review by the Refugee Review Tribunal of that decision.
The proceeding before this Court, commenced by way of application filed on 13 November 2006, is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 11 July 2007
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