SZERH v Minister for Immigration
[2008] FMCA 1376
•30 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1376 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal had jurisdiction to consider review application – prior judicial review of same issues – abuse of Court’s process. |
| Federal Magistrates Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.48B; 411; 414; 424A; 430(1)(c); 430(1)(d) |
| SZERH v Minister for Immigration and Multicultural Affairs [2006] FMCA 1023 SZERH v Minister for Immigration & Citizenship [2007] FCA 184 SZERH v Minister for Immigration & Citizenship [2007] HCA Trans 673 Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration and Citizenship [2007] FCA 771 SZAQW v Minister for Immigration and Multicultural Affairs [2006] FCA 1332 SZIHQ v Minister for Immigration and Multicultural Affairs [2006] FMCA 496 SZIIV v Minister for Immigration and Multicultural Affairs [2006] FCA 322 SZCKB v Minister for Immigration and Multicultural Affairs [2006] FCA 804 SZBCE v Minister for Immigration [2006] FCA 1897 SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | SZERH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2063 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 September 2008 |
| Date of Last Submission: | 30 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Punjabi interpreter |
| Solicitors for the Respondent: | Ms E. Warner-Knight, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2063 of 2008
| SZERH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 that the application filed on 8 August 2008 seeking judicial review of a decision of the Refugee Review Tribunal dated 27 June 2008 be dismissed on the basis that to allow the applicant's proceeding to continue would be an abuse of the Court's process having regard to the litigation history of the parties.
On 3 June 2004, the applicant lodged an application for a protection visa.
On 10 June 2004, a delegate of the minister (“the Delegate”) refused the applicant a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 13 July 2004, the applicant lodged an application with the Refugee Review Tribunal for review of the Delegate's decision.
On 12 October 2004, the Refugee Review Tribunal affirmed the decision of the Delegate to refuse the applicant a protection visa.
On 9 November 2004, the applicant filed an application in this Court seeking judicial review of that decision of the Refugee Review Tribunal.
On 21 July 2006, Nicholls FM dismissed the applicant's application for judicial review of the Refugee Review Tribunal's decision on the basis that the Refugee Review Tribunal's decision was not affected by jurisdictional error (SZERH v Minister for Immigration and Multicultural Affairs [2006] FMCA 1023). Ground 1 contended that the Refugee Review Tribunal made a jurisdictional error in making findings and conclusions contrary to the evidence. Ground 2 contended that the Refugee Review Tribunal's finding in holding against the applicant that he was unable to provide certain information was unreasonable. Nicholls FM concluded that the Refugee Review Tribunal's decision, dated 12 October 2004, was not affected by jurisdictional error.
On 14 May 2006, the applicant filed an appeal from the decision of Nicholls FM with the Federal Court of Australia, and on 22 February 2007, that appeal was dismissed by Siopis J (SZERH v Minister for Immigration & Citizenship [2007] FCA 184). Justice Siopis found that the Refugee Review Tribunal had not fallen into jurisdictional error and that the Federal Magistrate had not erred in failing so to find.
On 14 March 2007, the applicant filed an application for special leave to appeal to the High Court of Australia from the judgment of Siopis J. On 15 November 2007, the applicant's application for special leave was refused by the High Court (SZERH v Minister for Immigration & Citizenship [2007] HCA Trans 673). Justice Gummow found that there was no error by the Federal Magistrate in failing to find that the Refugee Review Tribunal had committed any jurisdictional error and that the applicant's case before the High Court disclosed no question of law that would justify the granting of special leave and showed no cause to doubt the correctness of the decision below. Justice Gummow also found that there were no prospects of success on any appeal to the High Court of Australia.
On 13 June 2008, the applicant lodged a further application with the Refugee Review Tribunal seeking a further review of the Delegate's decision. A copy of the decision of the Refugee Review Tribunal, newly constituted, (“the Tribunal”) is annexed to the applicant's affidavit filed on 8 August 2008 in support of his application. It is that decision that is the subject of the present judicial review application.
In that decision, the Tribunal recited the litigation history as referred to above between the parties. The Tribunal concluded that, where the Tribunal has received a valid application for review of a reviewable Refugee Review Tribunal decision and carried out its statutory decision to review the decision under s.414 of the Migration Act 1958 (Cth) (“the Act”), the decision is no longer a reviewable Refugee Review Tribunal decision under s.411 of the Act .
In the course of its reasons, the Tribunal referred to various authorities supporting that proposition. In particular, the Tribunal cited Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 (“Jayasinghe”) in support of the proposition that the Tribunal has no jurisdiction to review a delegate's decision twice. The Tribunal also had regard to the established principle that even if circumstances in an applicant's country have changed, this does not provide a basis for the Refugee Review Tribunal to accept a second review application or to reconsider the Delegate's decision, although it may be a potential basis upon which the Minister may permit lodgement of a further protection visa application under s.48B of the Act.
In the circumstances, the Tribunal, having concluded that it did not have jurisdiction to entertain or to consider the applicant's review application, concluded as follows:
“As the Tribunal has already reviewed the delegate's decision, the Tribunal has no jurisdiction to review the decision.”
In the application filed in this Court on 8 August 2008, being the subject of this afternoon's application, the applicant relied on the following grounds:
“1. The Tribunal made a jurisdictional error by concluding that the Tribunal no longer has jurisdiction to review the Delegate’s decision of 10 June 2004.
2. The Tribunal is obliged to review the decision of the Delegate and consider the law as the Tribunal, differently constituted in 2004, erred in affirming the decision of the Delegate on 12 October 2004.
3. The Tribunal in 2004 did not carry out an independent assessment of the Applicant’s claims thus committing jurisdictional errors as can be seen from the grounds of the previous Applicant hereunder:-
The grounds of the Application are:
1. The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly:-
Particulars – Greenbook
Page 75-para 02
“I do not consider truthful, and do not accept that Mr Singh left India because he was subjected to any serious harm or feared arrest as a result of his political activities and in the absence of of [sic] any other claim by him, that the change is remote that he will be arrested or seriously harmed on return to India for the Convention reason of his political opinion.”
Applicant’s comments:
The Tribunal has made a grave error and misconception about the reasons adduced by the Applicant in his original Statutory Declaration and factually enlarged by him in his oral evidence given before the Tribunal. He clearly stated in his evidence that he left India in 2004 when the police started arresting Pro-Khalistan supporters which statements were refuted by the Tribunal against the Applicant despite both written and oral evidence given by the Applicant and therefore amounts to a jurisdictional error committed by the Tribunal.
2. The Tribunal was Wednesbury Unreasonable in holding that the Applicant was not able to provide certain information, thus holding against him:
Particulars-Greenbook
Page 74-Para 05
“Firstly, apart from Mr Singh’s own assertion there is no evidence before the Tribunal that jailed Mr Bhittu’s call for the information of such a group was revealed in the media in India this year and it is very difficult to believe that the Indian Authorities would give the media access to Mr Bhittu’s prison.”
Applicant’s Comments
The Tribunal was highly unreasonable to put the onus on the Applicant to produce evidence when the Applicant clearly said that he read in the Punjabi Newspaper AJIT that Daljit Singh Bhittu had formed a political party. It was left to the Tribunal to have followed up whether that paper published an article to that effect rather than abruptly believe the Applicant’s evidence and shutting out the importance of the information provided by the Applicant. The Tribunal’s speculation what the indian [sic] authorities may allow or may not, is a mere conjecture by the Tribunal and not based on any material facts or evidence before the tribunal. Hence this is a jurisdictional error made by the Tribunal.
3. The Tribunal was ‘procedurally unfair’ and failed to comply with sec.424A of the Migration Act, making a serious jurisdictional error by concluding:
Particulars-Greenbook
Page 73-Para 06
“As to his wanting to separate a State for Sikhs (traditionally known as ‘Khalistan’) I accept the evidence from Ravi Nair (IRBC 1997) that those without a high profile had much less to fear from the Punjab Police so long as ago in 1997, and then had much better access to judicial recourse if they were treated improperly.
Applicant’s Comments
The Applicant submits that it was contrary to the law that the Tribunal used independent source of evidence (IRBC 1997) to support its findings without providing to the Applicant in advance the opportunity to either rebut or to make his counter arguments against such information, before the Tribunal handed down its decision to refuse the Applicant’s claims. This is a serious jurisdictional error committed by the Tribunal against the natural course of justice required to be given to the Applicant.
4. The Tribunal made further Jurisdictional Error by breaching s430(1)(c) & s430(1)(d) of the Migration Act 1958 in relation to its conclusions:
Particulars-Greenbook
Page73-Para 04
“He does not claim, and there is nothing in the Independent evidence set out above Sikhs are subjected to persecution in India merely because they are Sikhs. I am satisfied they are not.
Applicant’s comments
This is a serious jurisdictional error committed by the tribunal because the very independent evidence sighted by the Tribunal in its decision indicates otherwise.
According to Amnesty International 2003- Break the cycle of impunity and torture in Punjab, January, ASA 20.002.003) it observed “The target of torture had also changed since the period of militancy. Now the majority of victims were detainees held in connection with criminal investigations, and included members of all religious communities with social groups.”
The above quotation amply demonstrate that still the Sikhs are being persecuted And therefore the Tribunal finding has been proved wrong. It is clearly evident that even in 2003 those Sikhs who were in custody were victims of persecution and torture. Hence the Tribunals decision was completely wrong and this is clear legal error committed by the Tribunal
(Particulars of FRAUD or BAD FAITH if alleged (order 54B, rule 2)
NONE”
Plainly, Grounds 1 and 2 repeat the grounds considered and determined by Nicholls FM.
Ground 3 of the present application alleges the failure to comply with s.424A of the Act, in that the Tribunal had regard to independent evidence without providing the applicant an opportunity to comment. Having regard to the reasons for the Tribunal's decision, that ground is plainly untenable.
Ground 4 of the application alleged a breach of s.430(1)(c) and 430(1)(d) of the Act. The particulars in support of that ground appear to refer to the decision of the Refugee Review Tribunal dated 12 October 2004. To that extent, there has been a judicial determination of that issue, as there has of Grounds 1 and 2 above.
The grounds of the applicant's present application otherwise cavil with the conclusion of the Tribunal in its decision dated 27 June 2008 that it has no jurisdiction to entertain the applicant's further application lodged on 13 June 2008.
It is well established that the Refugee Review Tribunal cannot accept a second application for review of the same delegate's decision that has been confirmed already by the Refugee Review Tribunal (SZASP v Minister for Immigration and Citizenship [2007] FCA 771 (“SZASP”); SZAQW v Minister for Immigration and Multicultural Affairs [2006] FCA 1332; SZIHQ v Minister for Immigration and Multicultural Affairs [2006] FMCA 496; SZIIV v Minister for Immigration and Multicultural Affairs [2006] FCA 322; SZCKB v Minister for Immigration and Multicultural Affairs [2006] FCA 804; SZBCE v Minister for Immigration [2006] FCA 1897). I also refer to the authority of SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175, where Moore J, in confirming the principles in Jayasinghe, stated that the Refugee Review Tribunal did not possess the power to reopen or reconsider a decision that it had previously made.
Further, in a series of decisions identified in SZASP, Moore J stated that in circumstances where an applicant attempts to seek a second review of a delegate's decision, the Refugee Review Tribunal's decision that it no longer has jurisdiction to review that delegate's decision is correct where it has already discharged its functions under the Act to review that decision.
I refer to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 and Jayasinghe and paragraph 4 of SZASP. Moore J also stated that the Refugee Review Tribunal was correct in finding that changed circumstances did not provide a legal basis for undertaking a second review.
In the circumstances, the Tribunal's conclusion that it had no jurisdiction to review the Delegate's decision where an earlier, differently constituted, Refugee Review Tribunal had considered that decision was plainly correct.
The applicant has exhausted his appeal rights in respect of seeking judicial review of the decision of the Tribunal. In the circumstances, for the applicant to be allowed to continue with this proceeding would bring this Court into disrepute among right-thinking people (Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Dean and Dawson JJ). In the circumstances, the application before this Court is an abuse of the process of the Court.
Having regard to the litigation history of the parties, in my view, it is appropriate that, having found that it is an abuse of the Court's process for the applicant to have filed the present application, it is appropriate that the Court make order 3 sought by the first respondent that no further application for review of the decision of: the Refugee Review Tribunal handed down on 2 October 2004; the decision of the Refugee Review Tribunal dated 27 June 2008; or the decision of the Delegate of the first respondent dated 10 June 2004; or for review of any other administrative decision or action by any person or Tribunal relating to the application for a protection visa lodged on 3 June 2004, be accepted for filing without prior leave of the Court.
Accordingly, the proceeding before this Court, commenced by way of application filed on 8 August 2008, is dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 9 October 2008
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