SZCLW & Ors v Minister for Immigration
[2007] FMCA 660
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLW & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 660 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – a show cause proceedings under r.44.12 of the Federal Magistrate Court Rules 2001 (Cth) – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 Federal Magistrates Court Rules 2001 (Cth), r.13.11, 44.12 |
| Kosi v Minister for Immigration [2003] FMCA 340 NALE v Minister for Immigration [2003] FMCA 366 SZCLV & Ors v Minister for Immigration [2004] FMCA 553 SZCLV v Minister for Immigration [2004] FCA 1795 Walton v Gardiner (1993) 177 CLR 378 |
| First Applicant: | SZCLW |
| Second Applicant: | SZCLY |
| Third Applicant: | SZCLX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG657 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
| Advocate for the Applicants: | Applicants appeared in person with the assistance of a Bengali interpreter |
| Solicitors for the Respondents: | Ms M Mafessanti of Clayton Utz |
ORDERS
The application filed on 26 February 2007 is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by the applicants SZCLW, SZCLV or SZCLX to review Refugee Review Tribunal proceedings 0610230951, the decision of the Refugee Review Tribunal (N02/43594) made on
17 December 2003, or the decision of the Delegate of the Minister for Immigration (File No: CLF2001/53068 made on 26 June 2002, is to be accepted for filing without leave of this Court, pursuant to r.13.11(3)(b) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent's costs fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG657 of 2007
| SZCLW & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicants seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). Both sides appeared. The applicants are self-represented litigants and had the assistance of an interpreter. I believe it is the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
26 February 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 February 2007 rejecting the application on the ground that the Tribunal had already discharged its function under the Act to review the delegate's decision. Therefore, it found that the application for review was not a valid application because the Tribunal no longer had jurisdiction in relation to that decision.
The applicants applied for an order that first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act, in respect of the Tribunal decision of S Karas, reference 061023051.
The affidavit of Miriam Mafessanti, solicitor for the respondents, sworn and filed on 5 April 2007, was admitted into evidence.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZCLW”, “SZCLV” and “SZCLX”.
Background
The Tribunal decision contains the following background information, which I adopt for the purposes of this judgment:
The applicants applied to the Department of Immigration and Multicultural Affairs (the Department for Protection (Class XA) visas on 28 September 2001. The delegate decided to refuse to grant the visas on 26 June 2002 and notified the applicants of the decision and their review rights by letter dated 26 June 2002 and posted on 26 June 2002. The applicants applied to the Tribunal on 18 July 2002 for review of the delegate’s decision. The Tribunal, differently constituted, affirmed the delegate’s decision on 16 June 2003 and handed down on 17 December 2003 (RRT Reference N02/43594). The applicants unsuccessfully sought judicial review of the Tribunal’s decision. They also unsuccessfully sought the Minister’s intervention under s.417 of the Act. On 11 December 2006 the applicant lodged this current application with the Tribunal to review the delegate’s decision of 26 June 2002.
The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether a valid application has been made for review of the delegate’s decision.
The Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the prescribed time limit and because the Tribunal had already reviewed the delegate’s decision. The Tribunal wrote to the applicants on 5 January 2007 inviting submissions on this issue. The applicants made written submissions received by the Tribunal on 29 January 2007.(affidavit of Ms Mafessanti, p.82)
Application for review of the Tribunal’s Decision
The application for review in this Court sets out the following grounds:
1.The tribunal failed to act according to migration law and regulation.
2.The tribunal did not apply the correct laws when considering this matter.
3.The tribunal misinterpreted the migration laws.
4.The tribunal failed to exercise its jurisdiction under the migration act.
The response filed by the first respondent states that the first respondent does not admit to any jurisdictional error in the Tribunal decision.
Litigation history
The affidavit of Ms. Mafessanti provides a convenient summary of the litigation history of the applicants. I have adopted paragraphs 3 to 10 for the purposes of this judgment:
3.On 26 June 2002, the First Respondent’s delegate refused to grant the Applicants a protection visa.
4.On 17 December 2003, the Second Respondent (“RRT”) affirmed the delegate’s decision not to grant the Applicants a protection visa.
5.On 8 September 2004 Federal Magistrate Smith dismissed the Applicants’ application for judicial review in proceedings SYG 89 of 2004.
6.On 22 October 2004 Justice Emmett of the Federal Court of Australia dismissed the Applicants’ appeal in proceedings NSD 1409 of 2004.
7.On 11 December 2006, the Applicants lodged an application for review with the RRT to review the decision of the First Respondent’s delegate refusing to grant them a protection visa.
8.On 5 January 2007 the second RRT wrote to the Applicants inviting them to comment and provide further information.
9.On 29 January 2007 the Applicants replied to the second RRT by letter.
10.On 14 February 2007, the second RRT wrote to the Applicants and enclosed a copy of the RRT decision record affirming the delegate’s decision not to grant the Applicants a protection visa.
Submissions and reasons
The first applicant appeared at the first Court date on 20 March 2007, and was advised that this matter would be listed for a show cause hearing scheduled today. The first applicant was advised that she should seek legal assistance in the preparation for this hearing.
When this matter previously came before Smith FM, the primary applicant was the husband who had been granted the pseudonym ‘SZCLV’. His wife was given the pseudonym ‘SZCLW’ and his daughter ‘SZCLX’. In SZCLV & Ors v Minister for Immigration [2004] FMCA 553 at [7], His Honour set out the factual background taken from the applicant’s outline of submissions:
1. The applicants are a family of Bangladeshi Christians. The first applicant is a pastor of the Church of Bangladesh, the second applicant is his spouse and the third applicant is their child.
2. They lodged an application for Protection Visas on 28 September 2004 (CB 1ff). The first applicant had arrived in Australia to attend a Biblical Studies course in Newcastle in July 1997 (CB 34). He returned to Bangladesh twice, firstly at the end of 1997 (D 138), and then for some months at the end of 1998 (RD 86). The second and third applicants joined him at the end of November 1999.
3.In their protection visa application the applicants claimed to fear persecution for reason of their religion, and more specifically because of threats of extortion that were made against their family in Bangladesh, allegedly because of their religion (CB 18-20, 31-33). No more specific claims were made before the application was rejected on 26 June 2002 (CB 61-70). Their application to the Refugee Review Tribunal was lodged on 18 July 2002.
4.Thereafter many letters and statements were received by the Tribunal. Those from the first applicant (CB 84-85) and the second applicant (CB 137ff), allege that they were the persistent victims of extortion threats in their home town of Kushtia, and in Dhaka to where the family said that they fled, at the hands of Muslim gangs. They attributed this unwelcome attention at least partly to their Christianity.
In that hearing, the applicants were represented by counsel and had filed an amended application. The judgment details comprehensive arguments by both counsel, however, the application was dismissed.
The applicants exercised their right to appeal that decision in the Federal Court and Emmett J stated in SZCLV v Minister for Immigration [2004] FCA 1795:
3. The basis of the Tribunal’s conclusion is that the Tribunal did not accept the evidence of the appellants. Indeed, the Tribunal expressed the view that the appellants had completely fabricated the danger they claimed to fear. The only ground specified before the Federal Magistrates Court was that:
‘The Tribunal committed jurisdictional error of law by failing to have regard to information that it was obliged to consider pursuant to s.423 of the Migration Act.’
4. The Federal Magistrate dealt with that allegation in considerable detail and demonstrated that it was completely without substance. The material on the Tribunal’s file indicated quite clearly that consideration has been given to all of the material submitted by the appellants.
5. It is quite clear that this appeal is completely without substance and that the notice of appeal should never have been filed. It does no credit to the solicitors that they were a party to filing a notice of appeal in those circumstances. I consider the notice of appeal in its present form to be an abuse of process and I propose to strike it out on that basis.
In both applications, the claims of both the applicant husband, SZCLV, and the applicant wife, SZCLW, were the same and no distinction was made between them. Nor was there any indication that the applicant wife was relying purely on her familial relationship to her husband.
In these proceedings, SZCLW is the primary applicant and the husband the second applicant.When the primary applicant was invited to make submissions, these were limited to requesting that the Court consider the circumstances of their daughter who had now grown up in Australia. I believe it can be inferred from the litigation history set out above that the applicants have made this new application to extend the time period they may lawfully stay in Australia: NALE v Minister for Immigration [2003] FMCA 366; Kosi v Minister for Immigration [2003] FMCA 340. The current application is plainly an attempt to re-litigate a case already disposed of and it should be dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
The first respondent filed written submissions which correctly focussed on the issue before the Court:
1.The second RRT concluded it did not have jurisdiction to review the delegate’s decision on the following basis:
(a) the Applicants’ second application for review was received outside the mandatory time limit prescribed by section 412(l)(b) of the Migration Act 1958 (Cth) (“Act”) and regulation 4.31(2)(b) of the Migration Regulations 1994 (Regulations”) and therefore was not a valid application (“first finding”);
(b) the previous RRT had discharged its functions under the Act in respect of reviewing the delegate’s decision of 26 June 2002 and therefore the second RRT no longer had jurisdiction in relation to the delegate’s decision (“second finding”).
2. Subject to para 3(b) below, the First Respondent submits that there is no merit to the Applicants’ allegations that the second RRT failed to apply or misinterpreted the Act or the Regulations and failed to exercise its jurisdiction under the Act.
3. In respect of the first finding, the First Respondent:
(a) submits that the second RRT was correct to find that as the application for review was received by the RRT outside the mandatory time limit prescribed by section 412(1)(b) of the Act and regulation 4.31 (2)(b) of the Regulations, the second application for review was not a valid application. For this reason, the second RRT correctly concluded it did not have jurisdiction to review the delegate’s decision;
(b) concedes that:
(i) the second RRT did not put to the Applicants, in accordance with the requirements of section 424A of the Act, information that would be part of the reason for affirming the decision under review, namely, that the Applicants were out of time to lodge a second application for review with the RRT;
(ii) the first finding of the RRT’s decision is thereby affected with jurisdictional error.
4. In respect of the second finding, the First Respondent submits that:
(a) the second RRT was correct to find that it did not have jurisdiction to review the delegates decision because the RRT had already conducted a review and affirmed the delegate’s decision: see Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMA [2006] FMCA 322;
(b) the RRT complied with its obligations under section 424A of the Act as it sent to the Applicants a section 424A letter dated 5 January 2007 which stated “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.” By letter dated 29 January 2007 the Applicants replied to the RRT. The second RRT had regard to the Applicants letter but found that it did not provide any basis for accepting the second review application and concluded it did not have jurisdiction;
(c) no jurisdictional error affects this finding of the RRT.
5. The First Respondent submits that the second finding is an independent and unimpeached finding and in those circumstances the error of law affecting the validity of the first finding does not affect the validity or the RRT’s decision as a whole: see VBAP of2002 v MIMIA [2005] FCA 956 at [33].
6. The RRT’s decision does not otherwise disclose any reviewable error.
7. The Applicants have not demonstrated any error that would lead to the conclusion that the second RRT failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos. The Applicants have lot therefore demonstrated any entitlement to relief.
I agree with the submissions made by Ms Mafessanti that the second Tribunal correctly applied the Act and the Migration Regulations 1994 (Cth).
Conclusion
The application filed on 26 February 2007 must be dismissed pursuant to r.44.12(1)(a) of the Rules as it does not raise any arguable case for the relief claimed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 3 May 2007
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