SZCKX v Minister for Immigration
[2008] FMCA 80
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 80 |
| MIGRATION – Judicial review of second decision of Refugee Review Tribunal – first RRT decision upheld by Federal Magistrates Court, Federal Court, and High Court – functus officio – abuse of process. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), s.411, s.412, s.414 |
SZCKX v Minister for Immigration & Multicultural Affairs & Anor [2005] FMCA 1810
SZCKX v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 528
SZCKX v Minister for Immigration & Multicultural Affairs & Anor [2006] HCATrans 707
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301, 145 ALR 532
SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322
Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531
SZEBS v Minister for Immigration & Multicultural Affairs [2006] FCA 456
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Chandler v Alberta Association of Architects [1989] 2 SCR 848 (Canada)
Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78
Walton v Gardiner (1993) 112 ALR 289; 177 CLR 378
| First Applicant: | SZCKX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1038 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 3 December 2007 |
| Date of last submission: | 3 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2008 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Ms Buchanan |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application filed on 29 March 2007 and the amended application filed 13 June 2007 are dismissed.
The Court directs that no further application by the applicant for review of a decision of the Refugee Review Tribunal or of a delegate or of the Minister in any way relating to his Protection (Class XA) visa filed 24 October 2001 be accepted for filing in this Court except with leave of the Court.
The Court directs that the Court registry be notified forthwith in accordance with Order 2 above.
The Applicant pay the First Respondent’s costs fixed in the amount of $4,000 payable within 5 months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1038 of 2007
| SZCKX |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the second Tribunal”) signed on 7 March 2007 and notified to the applicant on 8 March 2007.
Background
The first Tribunal proceedings (CB 147-163)
The applicant, a citizen of Bangladesh, applied for a protection (Class XA) visa on 24 October 2001. A delegate of the first respondent (“the delegate”) refused that application on 27 February 2003.
On 24 March 2003, the applicant applied to the Tribunal for review of the delegate's decision. On 17 December 2003, the Tribunal (“the first Tribunal”) affirmed the delegate's decision.
On 9 January 2004, the applicant filed an application in this Court seeking review of the first Tribunal decision (SYG 60/2004). On 6 December 2005, Driver FM dismissed the application with costs: SZCKX v Minister for Immigration & Multicultural Affairs & Anor [2005] FMCA 1810.
On 21 December 2005, the applicant filed a notice of appeal in the Federal Court, (NSD 2591/2005). On 12 May 2006, Edmonds J dismissed the appeal with costs: SZCKX v Minister for Immigration & Multicultural Affairs [2006] FCA 528.
The applicant then applied for special leave to the High Court. On 14 December 2006, Hayne and Crennan JJ dismissed the special leave application: SZCKX v Minister for Immigration & Multicultural Affairs & Anor [2006] HCATrans 707.
The second Tribunal proceedings (CB 178-179)
On 10 January 2007, the applicant filed a second application with the Tribunal seeking that it again review the same delegate's decision (CB 166-170).
On 5 February 2007, the Tribunal sent a letter to the applicant indicating that:
Your application appears to be ineligible because the Tribunal has already completed a review of the relevant decision. It appears therefore that the Tribunal has no power to consider your application.
and inviting the applicant to respond if he disagreed (CB 173).
In his response dated 28 February 2007, (CB 174), the applicant submitted that the first Tribunal had failed to have regard to the evidence he provided in support of his claims, wrongly compared his case to others before it, and failed to notify, inform or raise with him certain matters on which it found against him and that there are therefore “compassionate and compelling circumstances involved with this matter, under which the Tribunal has power to rehear this matter.”
On 7 March 2007 the second Tribunal signed its decision and notified the applicant by letter dated 8 March 2007 that it had decided that it had no power to determine his application.
The relevant law applied by the second Tribunal
·The Tribunal's jurisdiction arises under s.411 of the Act if a valid application for review of an RRT-reviewable decision is made under s.412 of the Act.
·Section 411 sets out the various decisions that can be reviewed by the Tribunal, including a Protection (Class XA) visa. Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period.
·The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994. Where the applicant is not in immigration detention, the application for review must be lodged at a registry of the Tribunal not later than 28 days after the day on which notice of the delegate's decision is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in s.412(1)(b) and prescribed by r.4.31(2)(b). There is no provision for an extension of time.
·Where the Tribunal has received a valid application for review of a RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, it is precluded from again considering the matter as the Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301, 145 ALR 532 and SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322.
The second Tribunal’s findings and reasons
The second Tribunal considered the applicant’s submissions in his letter of response, but did not accept that they provided any basis for accepting the application before it. The Tribunal noted that the applicant unsuccessfully sought judicial review of the Tribunal’s earlier decision in SZCKX v MIMA & Anor [2005] FMCA 1810; SZCKX v MIMA & Anor [2006] FCA 528; and SZCKX v MIMA & Anor [2006] HCATrans 707.
In conclusion, the second Tribunal held that:
· the applicant lodged a previous application with the Tribunal for review of the delegate's decision on 24 March 2003;
· the Tribunal accepted that application, and conducted a review;
· the Tribunal has therefore already discharged its functions under the Act to review the delegate’s decision; and therefore; and
· it no longer had jurisdiction in relation to that decision.
The proceedings before this Court
The applicant filed the application in this Court on 29 March 2007 and the amended application on 13 June 2007 seeking review of the second Tribunal decision.
The applicant appeared in person with the assistance of an interpreter. Ms Buchanan appeared for the first respondent.
Grounds of application
I note that, to the extent that any of the applicant’s grounds of review go beyond the issue of whether the second Tribunal erred in finding that it had no jurisdiction to entertain the applicant’s application before it, they are not relevant to the task before this Court.
The relevant law
In Jayasinghe v MIEA (1997) 145 ALR 532, Goldberg J, after a detailed examination of the case law and relevant statutory provisions and applying the doctrine of functus officio whereby once the statutory function is performed there is no further function or act for the person authorised under the statute to perform, held that the Tribunal does not have the power to reconsider or reopen a final decision it has made on its review determining the substantive application.
In Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76, Finkelstein J at 85 referred to Jayasinghe v MIEA and to the decision of Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, in which French J concluded that there was no power to reconsider an entry permit refusal by a Minister:
French J held that the implication of such a [reconsideration] power could generate endless requests for reconsideration and given that the Migration Act 1958 (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the [RRT]……
In Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at [35], Merkel J stated that:
…the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act.
This statement in Singh was adopted by Jacobson J in SZEBS v Minister for Immigration & Multicultural Affairs [2006] FCA 456 at [9].
In Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the High Court recognised that some qualification should be placed on the doctrine of functus officio by its adoption of the reasoning of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, that:
…as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision …However, the [Supreme Court of Canada] held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation". (Gleeson CJ at [7])
and that:
…In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct….a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so… (Gaudron and Gummow JJ at [53]).
Application to present proceedings
In the present context, the first Tribunal decision was a valid and final decision reviewing the delegate’s decision. In this regard, it was the subject of judicial scrutiny by the Federal Magistrates Court (SZCKX v MIMA & Anor [2005] FMCA 1810), the Federal Court (SZCKX v MIMA [2006] FCA 528), and the High Court (SZCKX v MIMA & Anor [2006] HCATrans 707). No jurisdictional error was found. As relevantly observed by Hayne J in SZCKX v MIMA & Anor [2006] HCATrans 707 at [15]:
In the Federal Court, Edmonds J concluded that no error of law had been demonstrated in the reasoning of the Federal Magistrates Court and that no jurisdictional error had been committed by the Tribunal. There is no reason to doubt the correctness of those conclusions.
Applying the relevant legal principles, I consider that the second Tribunal was correct in finding that it did not have the power to reconsider the delegate’s decision a second time. I accept that the second Tribunal made a valid decision in accordance with the requirements of the Act and thereby discharged its statutory functions under the Act. The second Tribunal was thus functus officio and no longer had jurisdiction in regard to the delegate's decision.I accept the first respondent’s submission on these matters. In these circumstances, the qualification on the doctrine of functus officio, as recognised by the High Court in MIMA v Bhardwaj, does not apply.
The first respondent further submits, or in the alternative that, by reason of s.412 of the Act, the applicant’s second application filed with the Tribunal for review of the delegate’s decision was lodged out of time and hence the Tribunal lacked jurisdiction. I do not consider that the Tribunal based its conclusions that it had no jurisdiction upon this point, rather raising the relevant time limits to indicate that the first Tribunal decision was valid in this respect. In any event, given my determination above, it is not necessary to determine the point.
Abuse of process
The first respondent seeks orders pursuant to Rule 13.10 of the Federal Magistrates Court Rules that the application be summarily dismissed as having no reasonable prospects of success, or in the alternative, that the application be dismissed as being frivolous or vexatious and/or an abuse of the process of the Court.
The first respondent further invites the Court to make orders that no further application for review of the delegate's decision or the first or second Tribunal decision be permitted without leave of the Court.
Rule 13.10 of the Federal Magistrates Court Rules provides that the Court may order that a proceedings be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim, or
b)the proceeding or claim for relief is frivolous or vexatious, or
c)the proceeding or claim for relief is an abuse of the process of the Court.
In Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, The Federal Court held (at 85), that:
…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.
In Walton v Gardiner (1993) 112 ALR 289, the High Court, at 298, held that:
…proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ….proceedings before a court should be stayed as an abuse of process if…their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.
Ms Buchanan submits that it can be inferred from the litigation history of this matter that the present application has been bought as a means of obtaining some advantage for which the proceeding is not designed or for some collateral advantage beyond what the law offers, namely, for the purpose of delay to extend the applicant's lawful stay in Australia.
I consider that it is open to the Court to draw the inference sought by the first respondent in this regard that the applicant is seeking to use the Court’s process in this case purely for the collateral purpose of extending his stay in Australia.
The relevant legal principles, where repeated applications for review of a delegate’s decision are made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a second wholly unmeritorious application and amended application before this Court, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 31 January 2008
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