SZDMO v Minister for Immigration

[2006] FMCA 617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDMO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 617

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application at the first court date – applicant attempting to have delegate’s decision reviewed twice by the RRT.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48B, 417

Jayawasinga v Minister for Immigration (1996) 76 FCR 301
SZIIV v Minister for Immigration & Anor [2006] FMCA 322

Applicant: SZDMO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG954 of 2006

Judgment of: Driver FM

Hearing date: 27 April 2006

Delivered at: Sydney

Delivered on: 27 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Nanson
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG954 of 2006

SZDMO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision the Refugee Review Tribunal (“the RRT”).  The application was filed on 30 March 2006 and asserts notification of the RRT on 24 March 2006.  On that basis I find that the application was made within time.  The application asserts that the RRT misapplied the law, erred in holding that it had discharged its obligation to conduct review in the past and erred in law in holding that did not have jurisdiction to conduct review. 

2. Briefly, the RRT found that it had no jurisdiction to deal with the review application before it because the RRT had earlier dealt with a review application in respect of the same delegate's decision.  Indeed, the first RRT decision had been the subject of judicial review before this Court, the Federal Court and the High Court.

3. No jurisdictional error had been found and, in the circumstances, the RRT found that it had no jurisdiction to deal with the delegate's decision a second time.  In the light of that and at the application of the Minister, I decided to conduct an immediate show cause hearing in this matter.

4. I gave leave for the Minister to file in court today an affidavit by Angela Margaret Nanson that sets out the procedural history of this matter in relation to the first RRT decision.  That discloses that the first RRT decision was the subject of judicial review proceedings in this Court which found no jurisdictional error, an appeal to the Federal Court which confirmed that decision and an unsuccessful application for special leave to the High Court.  Further, a second application to this Court was dismissed summarily by Raphael FM.  On the basis of that procedural history I find that it has been conclusively established that the first RRT decision was free from jurisdictional error. 

5. There were two issues for the RRT to resolve in the second review application before it.  The first was whether the application was out of time.  The second was whether the RRT had no jurisdiction for the reason that it was functus officio.

6. The Refugee Review Tribunal found that there was a defect in the notification of the delegate's decision to the applicant and that because of that defect the second review application was not out of time.  However, the RRT found that because the first RRT decision was validly made it had no jurisdiction to entertain a second review application.  That decision is, in my view, undoubtedly correct.  I dealt with a similar circumstance in the case of SZIIV v Minister for Immigration & Anor [2006] FMCA 322. In that case there was also the issue of the second review application being out of time, but the issue of the RRT being functus officio exists in both cases.  I adopt for the purposes of this judgment paragraphs 10 and 11 of my judgment in SZIIV:

   Secondly, the RRT found that, in any event, it had no jurisdiction to review a delegate's decision twice.  That is undoubtedly correct where the first RRT decision is validly made; see Jayawasinga v Minister for Immigration (1996) 76 FCR 301, in particular at page 311. Simply put, the RRT was functus officio after it had reviewed the delegate's decision for the first time.

   The inability on the part of a review tribunal to review decisions more than once is apparent from the terms of the Migration Act 1958 (Cth) (“the Migration Act”). It is underscored by ss.48B and 417 of the Migration Act which exist to permit the Minister for Immigration to deal with exceptional circumstances. The applicant told me from the bar table the he has not yet exercised the opportunity to request ministerial intervention under either of those sections. In my view that is the only realistic option open to this applicant.

7. I find that the show cause application fails to disclose an arguable case. Accordingly, I dismiss it pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

8. The application having been dismissed, costs should follow the event.  The Court scale provides for costs of $1,000 to be payable in the present circumstances.  The Minister properly seeks a lesser amount fixed in the sum of $500.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 May 2006