SZBWM v Minister for Immigration & Anor
[2008] FMCA 167
•21 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 167 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a child with a litigation guardian – claim that circumstances have changed – second application to Tribunal – RRT reviewable decision – requirements for a valid application – functus officio – where the decision of a delegate of the Minister has already been the subject of a valid review by the Tribunal it is no longer an RRT reviewable decision. PRACTICE & PROCEDURE – Whether Federal Magistrates Court has the power on remitting an application to the Refugee Review Tribunal for reconsideration to make an order that the Tribunal should be differently constituted – whether second application to Refuge Review Tribunal permissible – abuse of process – costs – whether order for costs should be made against a child. |
| Australian Citizenship Act 2007 (Cth) s.12 Migration Act 1958 (Cth) ss.411, 416, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed. NAGC & Ors v Minister for Immigration [2002] FMCA 171 referred to. NAGC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1506 referred to. SZBWJ & Ors v Minister for Immigration [2005] FMCA 508 referred to. SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 referred to. SZBWJ& Ors v Minister for Immigration & Citizenship & Anor [2007] HCATrans 100 referred to. SZBWJ & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 164 followed. SZASP v Minister for Immigration & Citizenship [2007] FCA 771 followed. |
| Applicant: | SZBWM (BY HER LITIGATION GUARDIAN SZBWJ) |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2029 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 October 2007 |
| Date of Last Submission: | 18 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2008 |
REPRESENTATION
| Applicant: | Appeared by her litigation guardian SZBWJ |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
In the alternative, the Application is dismissed as an abuse of process.
No further application for judicial review of the decisions of the delegate of the First Respondent dated 26 April 2001 or the decisions of the Refugee Review Tribunal dated 27 March 2002 or 6 June 2007 is to be accepted for filing without leave of the Court.
The Applicant’s litigation guardian SZBWJ is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG of 2029 of 2007
| SZBWM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of Bangladesh, asks the Court to set aside a decision of the Refugee Review Tribunal made on 6th June 2007 and handed down on 8th June. The Tribunal found that it did not have jurisdiction to determine the application for review. The Applicant claims that she has made a valid application and that the Tribunal has a statutory duty to review the delegate’s decision.
The Applicant seeks the following orders:
1)An order in the nature of certiorari quashing the decision of the Tribunal for jurisdictional error;
2)An order in the nature of mandamus remitting the application for review to the Tribunal differently constituted to be decided according to law; and
3)Costs.
I am not satisfied that the Court has the power on remitting an application to the Refugee Review Tribunal for reconsideration to make an order that the Tribunal be differently constituted (see SZEPZ v Minister for Immigration & Multicultural Affairs[1]). Even if it is appropriate to make an order remitting the application to the Tribunal, the constitution of the Tribunal should be a matter for the Principal Member, not the Federal Magistrates Court.
[1] [2006] FCAFC 107 at [30]
Background
The Applicant is a child who was born on 7th June 2000. She is not an Australian citizen because of that fact, as neither of her parents is an Australian citizen or a permanent resident in Australia, nor has she ordinarily been resident in Australia for a period of 10 years since her birth.[2]
[2] Australian Citizenship Act 2007 (Cth) s.12
The Applicant’s parents and her elder brother arrived in Australia arrived in Australia on 24th September 1999. They applied for Protection (Class XA) visas on 5th November 1999. A delegate of the Minister refused their application on 1st December 1999, so they applied to the Refugee Review Tribunal for a review of that decision.
The Applicant was born on 7th June 2000. Her father, SZBWJ, applied for a Protection visa for her on 25th August 2000. A delegate of the Minister refused her application on 26th April 2001.
The Applicant then applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Refugee Review Tribunal received the application for review on 15th May 2001. On 27th March 2002 the Refugee Review affirmed the delegate’s decision not to grant the Applicant a protection visa. On that same day, the Tribunal affirmed the decision of the delegate not to grant protection visas to the Applicant’s parents and her brother.
The Applicant, along with her parents and her brother, sought judicial review of those decisions. On 7th August 2002 Federal Magistrate Driver dismissed their application (NAGC & Ors v Minister for Immigration[3]).
[3] [2002] FMCA 171
The Applicants then appealed against that decision. On 21st November 2002 Emmett J dismissed the appeal (NAGC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[4]).
[4] [2002] FCA 1506
The Applicants then sought special leave to appeal to the High Court of Australia. They discontinued their application on 13th November 2003.
The Applicants then proceeded to make a further application to the Federal Magistrates Court for review of the delegate’s decision. I heard the application on 18th April 2005 and dismissed it with costs against the First and Second Applicants (SZBWJ & Ors v Minister for Immigration[5]).
[5] [2005] FMCA 508
The Applicants appealed against that decision. On 22nd February 2006, the Full Court of the Federal Court (Moore, Nicholson and Emmett JJ) dismissed their appeal (SZBWJ v Minister for Immigration and Multicultural Affairs[6]).
[6] [2006] FCAFC 13
The Applicants then sought special leave to appeal to the High Court of Australia. On 2nd March 2007 Callinan and Gummow JJ refused special leave to appeal (SZBWJ & Ors v Minister for immigration & Citizenship & Anor[7]).
[7] [2007] HCATrans 100
The Applicant then brought another application to the Refugee Review Tribunal on 20th March 2007. This application sought a further review of the decision of the delegate made on 26th April 2001.
The Refugee Review Tribunal Decision
The Tribunal, in a decision[8] signed on 6th June and posted to the Applicant on 8th June 2007, found that it did not have jurisdiction to review the delegate’s decision because it had already discharged its functions under the Migration Act to review the decision.
[8] Court Book 335-337
Application for Judicial Review
The Applicant commenced proceedings in this Court on 2nd July 2007 by filing an application and supporting affidavit. The Applicant filed an amended application on 10th August 2007.
In the amended application, the Applicant sets out two grounds for relief.
1)First, the Applicant claims that in making the decision the Tribunal made jurisdictional error by denying the Applicant procedural fairness, giving the following particulars:
a)The Tribunal made findings as to the authenticity of the current situation in Bangladesh provided by the Applicant.
b)The Tribunal failed to make a proper disclosure of the information part of the reason for rejecting the authenticity of the information from the Applicant country and subsequently his decision affirming the decision under review.
c)The Tribunal did not afford the Applicant the opportunity to put their case as required in the circumstance.
2)Second, the Applicant claims that the Tribunal made a jurisdictional error “by violating the duty it was under in satisfying as to eligibility of the applicants for protection visas.” The Applicant gives the following particulars:
a)The Tribunal failed to comply with a mandatory provision of the Migration Act 1958 (Cth) section 425 in failing to invite the Applicant to attend, give evidence and present arguments in relation to issues arising.
b)The Tribunal failed to make comments on the information under s.424A(1) of the Migration Act and common law procedural fairness.
c)The Tribunal accepted the repeat application under s.416 of the Migration Act and denied the Applicants hearing rights and therefore committed jurisdictional error and denial of natural justice.
Considering the fact that the Tribunal’s decision was that it had no jurisdiction because it had already reviewed the decision, the only ground that appears to be relevant is Ground 2(c).
Submissions
The Applicant submitted a written outline of submissions that set out the parties’ litigation history and contained an application to join the Applicant as a party, a Fourth Applicant, to the proceedings SZBWJ & Anor v Minister for Immigration and Citizenship & Anor (SYG 1830/2007). The Applicant’s father, her litigation guardian, attended Court on her behalf. He made no oral submissions but relied on the submissions made by Ms McGarrity of counsel, who appeared pro bono for the Applicants in SZBWJ (supra).
Counsel for the Minister, Mr Reilly, submitted that the application appears to be premised on an assumption that the Tribunal had jurisdiction which it failed to exercise. He went on to submit that the Tribunal correctly held that it had no jurisdiction for the reasons it gave. He also relied on the submissions for the Minister in SZBWJ& Ors v Minister for Immigration and Citizenship[9] heard at the same time, mutatis mutandis. As SZASP v Minister for Immigration & Citizenship[10] cannot be distinguished the application should be dismissed. It also followed from SZASP that the application is an abuse of process and should be dismissed for that reason, also.
[9] [2008] FMCA 164
[10] [2007] FMCA 771
Conclusions
The fact is that the Applicant applied to the Refugee Review Tribunal seeking review of a decision of the delegate that had already been reviewed. Not surprisingly, the Tribunal found that it had no jurisdiction. There is an overwhelming weight of authority in this Court to the effect that the Tribunal has no jurisdiction in these circumstances.
I considered this situation in SZBWJ & Ors v Minister for Immigration & Citizenship & Anor[11] and found that the delegate’s decision was no longer an RRT reviewable decision. I held there that where the decision of a delegate of the Minister has already been the subject of a valid review by the Refugee Review Tribunal it is no longer an RRT reviewable decision under s.411 of the Migration Act. Where the Tribunal concludes that it has already discharged its function under the Act to review the delegate’s decision and a second application for review is not a valid application because the Tribunal has no jurisdiction in relation to that decision, there is no jurisdictional error (SZBRB v Minister for Immigration & Anor[12]).
[11] [2008] FMCA 164 at [38]-[43]
[12] [2007] FMCA 1093 at [32]; SZBRB v Minister for Immigration and Citizenship [2007] FCA 1452 at [19]
Section 416 of the Migration Act has no relevance in circumstances such as the present case where the Tribunal has already conducted a valid review of the delegate’s decision.[13]
[13] SZASP v Minister for Immigration & Citizenship [2007] FCA at [17]
The application will be dismissed.
I am also satisfied that the application is an abuse of process, which is a ground for dismissal of itself. An abuse of process will almost inevitably lead to dismissal with costs, and I consider that an order for costs in favour of the First Respondent is appropriate.
I note however that the Applicant is a child. It is inappropriate to make an order for costs against a child. The Applicant has a litigation guardian, her father SZBWJ, who brought and pursued these proceedings. I will hear submissions as to whether an order for costs should be made against him.
It is appropriate to order that no further applications for review of the delegate’s decision or either of the Tribunal’s decisions should be accepted for filing without leave of the Court.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 15 February 2008
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