SZCLP v Minister for Immigration

[2007] FMCA 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 326

MIGRATION – RRT decision declining jurisdiction – second application to Tribunal after unsuccessful judicial review – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), ss.412, 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

SZCLP v Minister for Immigration & Anor [2005] FMCA 1471
SZCLP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1875
SZCLP v MIMIA & Anor [2006] HCA Trans 502

Applicant: SZCLP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 52 of 2007

Judgment of: Smith FM

Hearing date: 6 March 2007

Delivered at: Sydney

Delivered on: 6 March 2007

REPRESENTATION

Counsel for the Applicant: Applicant In Person

Counsel for the First Respondents: Ms H Blackman

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $1,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 52 of 2007

SZCLP

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 on 8 January 2007, which seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal made on 11 December 2006. The Tribunal decided that it did not have jurisdiction to entertain an application for review which the applicant lodged on 26 September 2006. That application requested the Tribunal to review a decision of a delegate made on 25 February 2003, refusing to grant a protection visa to the applicant.

2. The Tribunal pointed out that the delegate's decision was the subject of a previous decision by the Tribunal, which had been handed down on 17 December 2003.  Its validity was upheld in this Court, the Federal Court and the High Court (see SZCLP v Minister for Immigration & Anor [2005] FMCA 1471, SZCLP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1875, and SZCLP v MIMIA & Anor [2006] HCA Trans 502).

3. In the Tribunal's opinion there were two reasons why it did not have jurisdiction to entertain a second application. The first was that the new application was plainly out of time under s.412 of the Migration Act. The second reason was that the Tribunal did not have power to review the delegate's decision for a second time, since it was functus officio.

4. In my opinion, the Tribunal's decision was plainly correct for the reasons it gave.  I can see no arguable basis for the applicant being entitled to a writ of mandamus to compel the Tribunal to further consider his refugee claims. 

5. The applicant's grounds for review do not identify any legal error in the Tribunal's reasoning, and his amended application in effect argues only that the Tribunal should have considered the merits of his new refugee claims.  However, the effect of its decision, correctly, was that it did not have jurisdiction to do that. 

6. His application has been set down today for a show cause hearing, and I consider that it is appropriate for me to dismiss the application under r.44.12(1)(a).

7. The Tribunal pointed out in its decision that, if the applicant genuinely considers that recent events in Bangladesh give rise for a well founded fear of persecution if he returned to that country, the proper course for him to pursue that claim is by way of an application to the Minister for a discretionary decision to allow him to bring a second application for refugee protection.  His present litigation is, in my opinion, plainly hopeless.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  21 March 2007