SZDCE v Minister for Immigration
[2008] FMCA 819
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 819 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal lacking jurisdiction as the delegate’s decision had previously been validly reviewed by the Tribunal – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 411, 414 |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 SZAQW v Minister for Immigration [2006] FCA 1332 SZASP v Minister for Immigration [2007] FCA 771 SZBCE v Minister for Immigration [2006] FMCA 1897 SZCKB v Minister for Immigration [2006] FMCA 804 SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 SZDCE v Minister for Immigration [2007] FMCA 76 SZDCE v Minister for Immigration & Citizenship [2007] FCA 625 SZDCE v Minister for Immigration & Anor [2008] HCATrans 42 SZIHQ v Minister for Immigration [2006] FMCA 496 SZIIV v Minister for Immigration [2006] FMCA 322 |
| Applicant: | SZDCE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1216 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 19 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1216 of 2008
| SZDCE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 14 May 2008. The applicant seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2008. The Tribunal found that it had no jurisdiction as the decision of the delegate in the case had previously been reviewed by the Tribunal.
The application is supported by an affidavit which asserts jurisdictional errors by the Tribunal. I received the affidavit as a submission and the decision record of the Tribunal as evidence. I also received as evidence an affidavit by Nicola Johnson made on 10 June 2008. That affidavit details the procedural history in this matter. That history is conveniently summarised in a chronology which I incorporate in this judgment:
BACKGROUND
Applicant born in Bangladesh 31 December 1974
Applicant arrived in Australia 11 August 2003
DIMA
Application for protection visa lodged 23 September 2003
Delegate’s decision 10 October 2003
TRIBUNAL
Application for review lodged 6 November 2003
Tribunal decision handed down 29 January 2004
FEDERAL MAGISTRATES COURT – SYG841 OF 2004
Application for judicial review filed 22 March 2004
Orders of Driver FM, by consent, remitting the matter to RRT
17 January 2006
TRIBUNAL
Tribunal hearing 16 March 2006
Tribunal decision handed down 1 June 2006
FEDERAL MAGISTRATES COURT – SYG1743 OF 2006
Application for judicial review filed 20 June 2006
Orders and judgment of Smith FM dismissing application
19 January 2007
FEDERAL COURT – NSD165 of 2007
Notice of Appeal lodged 7 February 2007
Orders and judgment of Edmonds J dismissing appeal
3 May 2007
HIGH COURT – S251 of 2007
Application for special leave to appeal lodged 30 May 2007
Orders of Kirby and Heydon JJ dismissing application
7 February 2008
TRIBUNAL
Tribunal application for review 28 February 2008
Tribunal decision signed 21 April 2008
FEDERAL MAGISTRATES COURT – SYG1216 of 2008
Application for judicial review filed 14 May 2008
On 10 June 2008 the Minister filed a response in this matter. That response is that there is no arguable case for the relief claimed by the applicant and that the application should be dismissed. In the light of that response I ordered an immediate show cause hearing in the matter this morning.
I note from the affidavit of Ms Johnson that the decision of the Minister's delegate was reviewed by the Tribunal for a first time in 2004. That decision was set aside by me. The Tribunal reviewed the delegate's decision a second time in 2006. The Tribunal's decision to affirm the decision of the delegate was handed down on 1 June 2006. The applicant sought review of that decision in this Court which dealt with the matter in SZDCE v Minister for Immigration [2007] FMCA 76. At [39] Smith FM found that the Tribunal's decision is a privative clause decision. The applicant appealed to the Federal Court: SZDCE v Minister for Immigration & Citizenship [2007] FCA 625. At [20] his Honour Edmunds J found that the conclusion by Smith FM that the Tribunal's decision was not infected with a jurisdictional error was correct. The High Court refused the applicant's special leave application in SZDCE v Minister for Immigration & Anor [2008] HCATrans 42. In refusing special leave, their Honours Kirby and Heydon JJ said:
The applicant's written case is devoted to factual and evidentiary criticisms of the decision made by the second Tribunal. Because of the circumstances, we have reviewed the entire file to see whether any basis for a grant of judicial review appears outside the matters dealt with in the courts below. There is no such basis. The applicant was disbelieved in her claim. No error of law or jurisdiction is apparent. An appeal to this Court would not enjoy reasonable prospects of success.
Those decisions establish conclusively that on the second occasion the Tribunal validly exercised its powers of review. It is trite law that if the Tribunal exercises its powers validly it cannot do so again. The Tribunal correctly stated the legal position in the second and third paragraphs of its decision under the heading “Relevant Law”:
Where the Tribunal has received a valid application for review of an RRT-reviewable decision and carried out its statutory duty under s.414 of the Act to review the decision, the decision is no longer an RRT-reviewable decision under s.411: SZBRB v MIAC & Anor [2007] FMCA 1093 at [30], SZBWJ & Ors v MIAC & Anor [2008] FMCA 164 at [41], and the Tribunal is precluded from again considering the matter. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMA [2006] FMCA 322. Even if circumstances in an applicant’s country have changed, this does not provide a basis for the Tribunal to accept a second review application, or to reconsider the delegate’s decision: see MIMA v Thiyagarajah (2000) 199 CLR 343 at [30], although it may potentially be a basis on which the Minister might permit lodgement of a further Protection visa application under s.48B of the Act.
The proposition that the Tribunal cannot accept a second application for review of the same RRT-reviewable decision has been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. It may be observed that many of these applications have been found to be an abuse of process, instituted for the purpose of prolonging the applicant’s stay in Australia: SZASP v MIAC [2007] FCA 771, SZAQW v MIMA [2006] FCA 1332, SZIHQ v MIMA [2006] FMCA 496, SZIIV v MIMA [2006] FMCA 322, SZCKB v MIMA [2006] FMCA 804 and SZBCE v MIMA [2006] FMCA 1897.
The present application to the Court is doomed to fail. I am not satisfied that the applicant has raised any arguable case for the relief she claims. Accordingly, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”)
The application having been dismissed, costs should follow the event. The Minister seeks scale costs in the amount of $1,000. The applicant indicated that she might need time to pay but did not make other submissions on costs. I will not require payment by any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 June 2008
0
13
2