SZDHF v Minister for Immigration
[2008] FMCA 1327
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDHF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1327 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – Tribunal finding it lacked jurisdiction as the delegate’s decision had been previously reviewed – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 65, 411, 412, 414 Migration Regulations 1994 (Cth) |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 SZDHF v Minister for Immigration & Anor [2007] FMCA 149 SZDHF v Minister for Immigration [2007] FCA 803 |
| Applicant: | SZDHF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2286 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 23 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Kelso Australian Government Solicitor |
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 on an indemnity basis, fixed in the amount of $1,700.
No further application by this applicant to review any migration decision relating to his protection visa application made on 8 November 2002 be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2286 of 2008
| SZDHF |
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 3 September 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 August 2008. The Tribunal found that it had no jurisdiction in the matter because the relevant decision of the delegate had previously been reviewed by the Tribunal.
The show cause application is supported by an affidavit by the applicant annexing a copy of the Tribunal decision and making legal assertions which I treated as a submission.
The Minister filed a response to the application on 17 September 2008. In that response the Minister seeks the summary dismissal of the application as an abuse of process. The response is supported by the affidavit of Brin Ellen May Anniwell made on 16 September 2008. That affidavit, which I have received, sets out the applicant's litigation history. I accept the accuracy of that record. I incorporate in this judgment with necessary amendments paragraphs 3 through to 16 of that affidavit:
The applicant arrived in 5 November 2002. He applied for a Protection (Class XA) visa with the then Department of Immigration and Multicultural and Indigenous Affairs on 8 November 2002.
On 17 December 2002, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs made a decision refusing the applicant's application for a protection visa (“the delegate’s decision”).
On 7 January 2003, the applicant lodged an application for review of the delegate’s decision with the second respondent (“the Tribunal”).
By a decision dated 23 March 2004, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (“the first Tribunal decision”).
The applicant sought judicial review of the decision by the Federal Magistrates Court of Australia (proceedings numbered "SYD 1080 of 2004") and on 8 May 2006 Emmett FM made orders, by consent, quashing the first Tribunal decision and remitting the matter to the Tribunal to determine according to law.
On 17 August 2006, the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the applicant a protection visa (“the second Tribunal decision”).
On 12 September 2006, the applicant filed an application for judicial review of the second Tribunal decision in the Federal Magistrates Court of Australia (proceedings numbered "SYG 2566 of 2006").
On 29 January 2007, Smith FM dismissed the application with costs finding that the second Tribunal decision did not reveal any reasoning process which was not within its jurisdiction[1].
On 14 February 2007, the applicant filed a Notice of Appeal in the Federal Court of Australia (proceedings numbered "NSD 207 of 2007") appealing the decision of Smith FM.
On 30 May 2007, Mansfield J dismissed the appeal with costs[2].
On 19 June 2007, the applicant filed an Application for Special Leave to Appeal in the High Court of Australia (proceedings numbered "S 599 of 2007").
On 6 March 2008, Hayne and Crennan JJ dismissed the Application for Special Leave to Appeal[3].
On 12 August 2008, the applicant lodged a further application for review of the delegate’s decision with the Tribunal. By a decision dated 26 August 2008, the Tribunal found that it did not have jurisdiction to review the delegate's decision ("the third Tribunal decision").
The present application was filed on 3 September 2008 and seeks review of the third Tribunal decision.
[1] SZDHF v Minister for Immigration & Anor [2007] FMCA 149
[2] SZDHF v Minister for Immigration [2007] FCA 803
[3] SZDHF v Minister for Immigration & Anor [2008] HCASL 19
The Tribunal set out the relevant law in relation to its jurisdiction in its decision:
The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the [Migration] Act [1958 (Cth) (“the Act”) for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribe time periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and start when the applicant is notified of the decision in accordance with the legislation in force at the relevant time.
Where the Tribunal has received a valid application for review of an RRT-reviewable decision and carried out is statutory duty to review the decision under s.414 of the Act, the decision is no longer an RRT-reviewable decision under s.411: SZBRB v MIAC & Anor [2007] FMCA 1093 at [30]; SZBRB v MIAC [2007] FCA 1452 at [21]; and SZBWJ & Ors v MIAC & Anor [2008] FMCA 164 at [41]. 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 application 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: see 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 Tribunal was clearly correct. Once the Tribunal has validly exercised its powers under the Act it has exhausted its functions. There can be no further application to the Tribunal. This is now trite law. Nevertheless, such applications to the Tribunal continue to be made. Such applications, in my view, abuse the Tribunal's process. The present application to this Court is doomed to fail. There is clearly no error in the Tribunal decision. It was obvious from the applicant's oral submissions this morning that he is seeking to avoid having to return to Bangladesh which he considers would be unsafe for him. I asked him whether he has raised his concerns with the Minister. He told me that he has previously requested ministerial intervention but that request has been rejected. Nevertheless, the only person who can change the first Tribunal's decision is the Minister.
There is no point in the applicant attempting to return either to the Tribunal or to the Courts. The Courts have previously found that the second Tribunal decision was free from jurisdictional error. The third Tribunal could do nothing further, neither can the Courts. The present application, in the light of the well known legal principles, abuses this Court's process.
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) because the application raises no arguable case for the relief claimed.
As I have also found an abuse of process, I will in addition order that no further application by this applicant to review any migration decision relating to his protection visa application made on 8 November 2002 be accepted for filing in this Court except by leave of a Federal Magistrate.
The application having been dismissed, costs should follow the event. In addition, an abuse of process having been found, costs should be awarded on an indemnity basis. The Minister seeks indemnity costs fixed in the amount of $1,700. I accept that that is a reasonable figure having regard to the substantial litigation history of this applicant which the Minister's legal advisers were required to review. The applicant indicated that he would have difficulty paying costs. He told me that he has not paid any previous costs amounts that have been awarded against him in the various legal proceedings. I invited the applicant to consider his personal solvency. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the amount of $1,700.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 September 2008
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