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

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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 617
Decision Date: 27 April 2006

CaseChat Overview and Summary

SZDMO has brought a case against the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal (RRT) in the Federal Magistrates Court of Australia. SZDMO is seeking to have the RRT's decision reviewed, which refused a protection visa and dismissed a show cause application at the first court date. The applicant attempted to have the delegate's decision reviewed twice by the RRT. The legal issues that the court needed to decide were whether the second review application was out of time, and whether the RRT had no jurisdiction to review a delegate's decision twice. The court found that the RRT had no jurisdiction to review a delegate's decision twice, as it had already reviewed the decision once and was therefore functus officio. The court also found that the second review application was not out of time due to a defect in the notification of the delegate's decision to the applicant. The court dismissed the show cause application as it did not disclose an arguable case.

The court's reasoning was based on previous cases and the terms of the Migration Act 1958 (Cth). The court found that the RRT was functus officio after it had reviewed the delegate's decision for the first time, and that the inability on the part of a review tribunal to review decisions more than once was apparent from the terms of the Migration Act. The court also found that the second review application was not out of time due to a defect in the notification of the delegate's decision to the applicant. The court dismissed the show cause application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). The court ordered that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which it fixed in the sum of $500.

Orders