SZEHN v Minister for Immigration

[2007] FMCA 840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 840

MIGRATION – RRT decision – second application to Tribunal – unsuccessful judicial review of previous Tribunal’s decision – Tribunal correctly found no jurisdiction – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.476, 477

Applicant: SZEHN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG959 of 2007

Judgment of: Smith FM

Hearing date: 22 May 2007

Delivered at: Sydney

Delivered on: 22 May 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,150. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG959 of 2007

SZEHN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter the applicant filed an application on 21 March 2007, seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 September 2006. In that decision the Tribunal decided that it did not have jurisdiction to entertain an application for review filed on 28 April 2006.

2. The Tribunal arrived at that conclusion upon two bases.  First, that the application sought review of a decision of a delegate made on 1 October 2002 and was long outside the prescribed period for applying to the Tribunal.  Secondly, it referred to previous extensive unsuccessful litigation by the applicant in relation to an earlier decision by the Tribunal made on 14 July 2004, which had affirmed the same decision of the delegate.  The validity of the earlier decision had been judicially determined, and it was functus officio in relation to conducting a second review.  

3. The application to this Court was returnable at a first court date before me on 10 April 2007.  I then set the matter down for hearing today on the issue of whether the applicant had raised an arguable case for the relief sought.  In effect, that relief is a writ in the nature of mandamus compelling the Tribunal to exercise jurisdiction. 

4. The Minister in a Response challenged the merits of the application, and also challenged the competency of the matter by reason of the period elapsing from the date when the applicant admitted receiving notice of the Tribunal’s decision on jurisdiction, 4 October 2006, and his commencement of the proceeding on 21 March 2007. The Minister contends that a greater period than the 84 days allowed under s.477 has elapsed, so that the application is incompetent by reason of s.477 of the Migration Act.

5. The applicant attended today.  He had no argument to present to show that the Tribunal has jurisdiction, and in my opinion the Tribunal’s decision was undoubtedly correct for the reasons it gave.  In my opinion, the Tribunal did not have jurisdiction to entertain a second application for review, and the applicant has no arguable basis for seeking the relief he now seeks.  

6. The grounds of his application seek to challenge the Tribunal’s decision on jurisdiction by referring to its failure to address a submission he made to it.  This explained why he still claims that he is a refugee, and sought a consideration of his situation in the light of changed circumstances in Bangladesh.  However, the Tribunal had no obligation to address those matters in the absence of jurisdiction, and the applicant had no entitlement to be heard in relation to them if his application was not brought within the jurisdiction of the Tribunal. 

7. For the above reasons, I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), on the ground that no arguable case has been raised. I consider that this is a preferable basis for dismissing the application, than by ruling upon the issues of competence.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  1 June 2007