SZCFB v Minister for Immigration
[2008] FMCA 186
•5 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCFB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 186 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – second application to Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.48, 416, 424A, 425 |
| Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor [1997] 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZCFB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 238 SZCFB v Minister for Immigration and Multicultural Affairs [2006] FCA 1189 SZCFB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs & Anor [2007] HCA Transcript 176 |
| Applicant: | SZCFB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2123 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2123 of 2007
| SZCFB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 18 June 2007 that the Tribunal did not have jurisdiction in relation to an application to review a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The background to these proceedings is somewhat lengthy. For present purposes it is relevant to note that applicant arrived in Australia in May 2003 and applied for a protection visa. That application was refused by a decision of a delegate of the first respondent of 8 August 2003.
The applicant sought review of that decision by application lodged with the Tribunal on 28 August 2003. The Tribunal held a hearing and on 5 December 2003 it handed down a decision affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant sought judicial review of that Tribunal decision by application filed in this Court on 16 December 2003. That application was dismissed on 13 February 2006. (See SZCFB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 238). An appeal from that decision was dismissed by the Federal Court on 1 July 2004 (SZCFB v Minister for Immigration and Multicultural Affairs [2006] FCA 1189) and an application for special leave to appeal to the High Court was unsuccessful. (See SZCFB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs & Anor [2007] HCA Transcript 176).
The applicant then lodged a further application with the Tribunal for review of the delegate's decision of 8 August 2003. That application was received by the Tribunal on 10 May 2007. The Tribunal wrote to the applicant on 11 May 2007 acknowledging receipt of the application. On 18 June 2007 the Tribunal handed down a decision finding that it did not have jurisdiction to carry out the review.
In its reasons for decision the Tribunal set out the background to the applicant's applications to the Tribunal and his judicial review proceedings. It stated that the question that arose was whether it had jurisdiction to review the delegate's decision on the basis of the application for review lodged on 10 May 2007. The Tribunal stated that if it had received a valid application for review and carried out its statutory duty to review the decision it had no jurisdiction to review the matter again. It referred to the fact that such principles had been confirmed in a large number of cases in the Federal Court and Federal Magistrates Court involving repeat applications to the Tribunal and the Courts relating to the same primary decision. (See in particular Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor [1997] 76 FCR 301).
The Tribunal found that the decision of the delegate of 8 August 2003 was an RRT reviewable decision, but that the applicant had previously lodged an application for review of the same decision that the Tribunal had accepted, that the Tribunal had conducted a review and that it had therefore already discharged its functions under the Migration Act 1958 (Cth) to review the decision. As it had already discharged its functions under the Act to review the delegate's decision, it no longer had jurisdiction in relation to that decision. As the Tribunal proceeded on that basis it found it unnecessary to consider whether the review application lodged on 10 May 2007 was invalid as lodged outside the prescribed time limit.
The applicant sought review of the Tribunal decision that it had no jurisdiction by application filed in this Court on 9 July 2007. The applicant filed an amended application on 24 September 2007 and confirmed in Court today that he relied on the grounds in that amended application on which he relied. He did not file written submissions but made brief oral submissions today.
Considering first the grounds in the amended application, it is contended first that there was a “constructive failure of jurisdiction going to satisfaction and a misconception of duty”. There are no particulars in relation to this ground. As set out it does not establish any ground for review of the Tribunal decision. There is nothing in the material before the Court to establish jurisdictional error on such a basis. In particular, I note that this was not a case in which the Tribunal considered whether it was satisfied that the applicant met the criteria for the class of visa for which he had applied. The Tribunal did not carry out a review of the delegate's decision, but rather found, as set out above, that it did not have a jurisdiction in this matter.
The Tribunal correctly found that because there had been a prior review of the delegate's decision, it no longer had jurisdiction to review that decision, having discharged its functions under the Migration Act to carry out such a review. (See Jayasinghe and also SZASP v Minister for Immigration & Citizenship [2007] FCA 771 at [4] and cases cited therein). The Tribunal considered the issue of jurisdiction and there is nothing to establish a constructive failure of jurisdiction or a misconception of duty.
Grounds 2 to 4 contend that the applicant presented material to the Tribunal which it failed to consider and that the Tribunal failed to satisfy itself that nothing in that material could affect its decision. In the hearing today I asked the applicant what material this was intended to refer to and whether he had given material to the Tribunal in connection with his latest review application. He did not suggest that he had provided any material to the Tribunal in connection with the review under consideration in these proceedings. In fact, he indicated he had not given the Tribunal certain certificates. He went on to express concern that he had not been believed, apparently taking issue with the earlier Tribunal decision. He sought on that basis that the matter go back to the Tribunal for reconsideration, as he claimed that at the Tribunal hearing he had been very hesitant and could not explain himself well enough.
These grounds do not establish jurisdictional error on the part of the Tribunal. There is nothing to indicate that the applicant put any material before the Tribunal in connection with his application of 10 May 2007. His complaint in relation to the conduct of the earlier Tribunal does not establish jurisdictional error on the part of the Tribunal in this instance. Insofar as he does complain about the first Tribunal decision, I note that he unsuccessfully sought judicial review of that first Tribunal decision, not only in this Court, but on appeal to the Federal Court and by application for special leave to appeal to the High Court.
No jurisdictional error is established on the basis contended for in paras 2 to 4 of the amended application.
The final ground in the amended application is that the Tribunal decision was affected by jurisdictional error because “there was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision of the delegate at the time when the Tribunal sought to comply with its obligations under s.424A of the Act. And alternatively, the Tribunal did not comply with the requirements of s.424A of the Act.”
This ground is misconceived and misunderstands the basis for the Tribunal decision. The Tribunal did not conduct a review and then affirm the decision of the delegate. Rather, it found that it had no jurisdiction. In those circumstances there was no time at which the Tribunal had to or indeed did seek to comply with any obligations under s.424A of the Act. Rather such obligations did not arise as the Tribunal found that it did not have jurisdiction to carry out the review of the delegate's decision sought by the applicant.
As indicated, the Tribunal correctly found that it had already discharged its function of review and hence no longer had jurisdiction. No jurisdictional error is established on the basis contended for in the amended application.
For the sake of completeness I also note that no jurisdictional error is established on any of the bases contended for in the original application for the reasons given in the respondent's outline of submissions which address the grounds in the original application.
First the complaint that the Tribunal should have put to the applicant country information adverse to his case again misconceives the nature of the decision in issue, which was the decision that the Tribunal did not have jurisdiction. So does the contention that there was a failure to comply with s.425 in failing to invite the applicant to attend a hearing. As the Tribunal decided that it had no power to review the decision of the delegate, it was not required to comply with s.425. This is not a case in which there was any doubt in that respect. Nor is it a case where the matter was remitted to the Tribunal for reconsideration after judicial review proceedings. Further, as discussed above, the Tribunal had no obligation pursuant to s.424A in these circumstances.
The application also refers to s.416 of the Act and contends generally that the Tribunal accepted the repeat application and denied the applicant hearing rights and therefore committed jurisdictional error and that there was a denial of natural justice. This claim was not addressed by the applicant and there is nothing in the material before the Court to establish the contention that the application was accepted under s.416 of the Act (see s.48B) or that there was any lack of procedural fairness constituting jurisdictional error. Rather, as the applicant told the Court today, having been unsuccessful in the first Tribunal review and in subsequent judicial review, he himself sought to go back to the Tribunal on a second occasion. No jurisdictional error is established on the basis contended for in the application.
As no jurisdictional error has been established, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
I consider it is appropriate to make the costs order sought by the first respondent. The amount is appropriate having regard to the nature of this and other similar matters.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 21 February 2008
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