SZEAC v Minister for Immigration
[2007] FMCA 1552
•23 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1552 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – summary dismissal – second application to Tribunal for review of a decision of a delegate of the first respondent. |
| Migration Act 1958 (Cth), ss.66(2), 416 Federal Magistrates Court Rules, r.13.10(a) Federal Court of Australia Act 1976, s.31A |
| Boston Commercial Services Pty Limited v GE Capital Finance (Australia) Pty Limited [2006] FCA 1352 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZEAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1746 White Industries (Australia) Ltd v Commissioner for Taxation [2007] FCA 511 |
| Applicant: | SZEAC |
| Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3357 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2,500.
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3357 of 2006
| SZEAC |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the court by way of a notice of motion filed by the first respondent on 11 April 2007 seeking summary dismissal of an application filed by the applicant in this Court on 15 November 2006 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) dated 19 September 2006. The Tribunal found that it had no jurisdiction, both because the application for review was out of time and because the applicant had previously sought and obtained review by the Tribunal of the decision of the delegate of the first respondent not to grant the applicant a protection visa.
The first respondent seeks summary dismissal on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and on the basis that the proceeding is an abuse of the process of the court. A claim in the notice of motion that the proceeding was frivolous or vexatious was not elaborated on in oral submissions.
As referred to in the affidavit of Greg Johnson sworn on 11 April 2007 and as is apparent from the bundle of relevant documents before the Court, the applicant in these proceedings initially lodged an application for a protection visa in February 2004. The application was refused by a delegate of the first respondent and the applicant was notified of the decision of the delegate by letter dated 9 March 2004 and sent by pre-paid post on that date to the applicant’s authorised recipient at an address in Australia. The applicant sought review by the Tribunal. On 28 May 2004 the Tribunal affirmed the delegate’s decision. The applicant then sought review of the Tribunal decision in this Court. That application was dismissed by Emmett FM on 30 August 2005. The applicant appealed to the Federal Court. The appeal was dismissed by Madgwick J on 23 November 2005. The applicant then sought special leave to appeal to the High Court. That application was dismissed by Gummow ACJ and Heydon J on 13 June 2006.
Relevantly on 29 June 2006 the applicant lodged a fresh application for review of the same delegate’s decision with the Tribunal. The Tribunal wrote to the applicant by letter dated 25 July 2006 indicating that his application appeared to be ineligible because it was out of time and because the Tribunal had already completed a review of the relevant decision. It gave him an opportunity to comment on these issues. The applicant took that opportunity by letter dated 16 August 2006 claiming that he had not appeared at the original Tribunal hearing because he was ill and that he sought a further opportunity to appear before the Tribunal on humanitarian grounds. He claimed that the Tribunal had power to accept his application as valid because it had accepted it knowing that it was a repeat application.
In its reasons for decision the Tribunal referred to the applicant’s written submissions. It set out the provisions in relation to notification of a decision of a delegate under the Migration Act 1958 (Cth) and Migration Regulations and the law in relation to situations where the Tribunal had already carried out a review of a delegate’s decision. The Tribunal was satisfied that the delegate’s decision notification complied with the requirements of section 66(2) of the Migration Act, that it was despatched and notified within the requirements of the Migration Act and hence that the applicant was seeking review of the delegate’s decision outside the prescribed time limit. It also found that having accepted the initial application for review and conducted a review, the Tribunal had already discharged its functions under the Migration Act to review the delegate’s decision and that it had no jurisdiction to again review the decision.
The Tribunal did not accept that the applicant’s submissions provided any basis for accepting the review application lodged on 29 June 2006. It concluded that as the application for review was not a valid application, the Tribunal did not have jurisdiction in relation to that decision.
As indicated, the applicant sought review by application filed in this Court on 15 November 2006. He contended generally that the Tribunal denied him natural justice because it failed to consider his case and proceeded without a hearing, that the decision was in breach of section 416 of the Migration Act and that the Tribunal did not consider all the materials and failed to provide him with an opportunity to appear before it to explain the current political situation and his fear of persecution in Bangladesh.
In oral submissions the applicant stated that he could not return to his home country and took issue with the failure of the tribunal to invite him to a hearing.
The respondent seeks summary dismissal. The primary basis relied upon is that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim. (See Rule 13.10(a) of the Federal Magistrates Court Rules.)
It is clear that the Tribunal conclusion that as there had been a prior review of the delegate’s decision it no longer had jurisdiction to review that decision because it had discharged its functions under the Migration Act to carry out such a review was correct. (See Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [4] and cases cited therein.) The applicant’s claim about his failure to appear at the first hearing does not change the correctness of the Tribunal’s conclusion in relation to the prior Tribunal review. The Tribunal in this instance was not under an obligation to invite the applicant to a tribunal hearing in relation to his second and invalid application. The Migration Act does not oblige the tribunal to invite an applicant to a hearing in relation to the preliminary issue of whether the tribunal has jurisdiction.
Insofar as it appears to be submitted that the Tribunal denied the applicant natural justice, I note that the Tribunal wrote to the applicant in relation to the notification of the delegate’s decision and the timing of his application for review. It put to him not only that his application appeared to be out of time and therefore ineligible for review but also that it appeared to be ineligible because the Tribunal had already completed a review of the relevant decision of the delegate.
The applicant was given an opportunity to respond to these concerns. He took that opportunity and his response was considered by the Tribunal in its reasons for decision. In these circumstances it cannot be said that there is any prospect of success in the applicant’s argument that there was a lack of procedural fairness let alone jurisdictional error in the manner in which the Tribunal proceeded. Nor is there anything to indicate that the applicant has a prospect of success in this Court in relation to the Tribunal’s approach to the issue of time limits. In any event the Tribunal’s finding that it had no jurisdiction because there had been a prior review by the delegate would in itself be a sufficient answer to any concerns in that respect.
The applicant’s reference to section 416 of the Migration Act is not such as to establish any arguable basis for a ground of review. That section provides that where there has been a prior application for review determined by the Tribunal and the applicant makes a further application for review (and I note in that context that the Minister may permit that to happen but did not do so in this case) the Tribunal in considering the further application is not required to consider any information considered in the earlier application and may have regard to and take to be correct the prior decision of the Tribunal.
There is nothing in the circumstances of this case that raises the operation of section 416. As the Tribunal formed the view that the application was invalid it was not necessary for it to consider, as seems to be submitted, the substance of the applicant’s claimed concerns in relation to a fear of persecution. In these circumstances no argument by the applicant as to jurisdictional error in relation to the Tribunal decision dated 19 September 2006, whether in relation to its procedures or the substantive issues, has any prospect of success.
I have borne in mind the caution to be exercised in relation to an application for summary dismissal and note that the respondent accepts as a matter of principle that an order which prevents a party from pursuing a claim should only be made in a very clear case (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). I have also borne in mind the test applicable under Rule 13.10(a) of no reasonable prospect of successfully prosecuting the proceeding (as to which see the discussion by Rares J in Boston Commercial Services Pty Limited v GE Capital Finance (Australia) Pty Limited [2006] FCA 1352 in relation to the assessment of reasonable prospects of success for the purposes of section 31A of the Federal Court of Australia Act 1976).
For the reasons set out above, in this case I am satisfied that the application for review of the second Tribunal decision is bound to fail. (See White Industries (Australia) Ltd v Commissioner for Taxation [2007] FCA 511 at [45] – [60] per Lindgren J in relation to the meaning of no reasonable prospect of success.) There has been no argument put before the Court by the applicant, nor indeed is there any argument available to the applicant, which holds any prospect of success in establishing that the Tribunal had jurisdiction to consider afresh his entitlement to a protection visa in this instance or that it fell into jurisdictional error in finding that it had no jurisdiction.
I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting the proceeding and that the application should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules. In these circumstances it is not necessarily for the Court to determine whether the proceedings are also an abuse of process or, indeed, whether the proceedings are frivolous and vexatious (but see the discussion by Moore J in SZASP in relation to such an issue and note the comment of Madgwick J when this matter was before the Federal Court on Appeal in SZEAC v Minister for Immigration and Multicultural Affairs [2005] FCA 1746, in particular at [9] – [10]).
The applicant has been unsuccessful, in that the notice of motion in the application for summary dismissal has succeeded. The first respondent seeks costs in the sum of $2,500, which is the amount provided for in the Schedule to the Federal Magistrates Court Rules. The applicant asks that the amount be reduced, but gives no reason why this should be done. In all the circumstances, I consider that the amount is appropriate in light of the nature of this and other similar matters. It is also appropriate to amend the name of the first respondent as requested.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 11 September 2007
4