SZBTB v Minister for Immigration

[2007] FMCA 122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBTB & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 122

MIGRATION – RRT decision – second application to Tribunal to review decision previously upheld by Tribunal and on judicial review – no jurisdiction – application for judicial review dismissed.

Migration Act 1958 (Cth), ss.412(1)(b), 414, 415, 425, 476, 477

SZBTB & Ors v Minister for Immigration [2005] FMCA 1504
SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1924
SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 486

First Applicant: SZBTB

Second Applicant: SZBTC

Third Applicant: SZBTD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3284 of 2006

Judgment of: Smith FM

Hearing date: 24 January 2007

Delivered at: Sydney

Delivered on: 24 January 2007

REPRESENTATION

Counsel for the Applicant: Applicant husband in person

Counsel for the First Respondent: Mr J Wright

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants must pay the first respondent’s costs in the sum of $2,000.   

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3284 of 2006

SZBTB

First Applicant

SZBTC

Second Applicant

SZBTD

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed in this Court on 10 November 2006, in which the applicants seek orders under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 October 2006 and notified to the applicants on 27 October 2006. In that decision, the Tribunal answered an application which was lodged by the applicants with the Tribunal on 12 September 2006, requesting that it conduct a review of a decision of a delegate made on 28 March 2003. The delegate had refused to grant protection visas to the applicants.

2. In its decision, the Tribunal held that it did not have jurisdiction to review the delegate’s decision under ss.414 and 415 of the Migration Act. The Tribunal considered that the application for review was not valid by reason of two circumstances: first, it was lodged with the Tribunal outside the mandatory time limit under s.412(1)(b) of the Migration Act; and secondly, the Tribunal was functus officio in relation to any power to review the delegate’s decision by reason of an earlier decision of the Tribunal handed down on 1 October 2003 which affirmed the delegate’s decision.  The validity and legal conclusiveness of that decision had been upheld judicially in an application for judicial review which had been pursued all the way to the High Court (see SZBTB & Ors v Minister for Immigration [2005] FMCA 1504, SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1924, and SZBTB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 486).

3. The Tribunal referred to relevant authorities for its conclusions, and in my opinion it was plainly correct to decline jurisdiction. 

4. The applicants have not presented any argument to the Court to show that the Tribunal had jurisdiction.  For that reason I consider that the present application should be dismissed.

5. I note that the Minister’s representative has raised other reasons for dismissing the application to this Court, including incompetency by reason of s.477 of the Migration Act, and abuse of process by reason of the prior litigation.  However, I prefer to rest my judgment on the correctness of the Tribunal’s decision that it lacked jurisdiction. 

6. The question of the Tribunal’s jurisdiction is a matter which this Court determines for itself, and questions of procedural fairness by the Tribunal in relation to its jurisdictional decision are probably irrelevant. However, I note that the Tribunal did invite the applicants to make submissions in relation to its jurisdiction, and they did so. I do not think there was any denial of procedural fairness. By reason of the invalidity of the application for review, the applicant was not entitled to be invited to a hearing pursuant to s.425.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Smith FM

Research Associate:  Michael Abood

Date:  16 February 2007