SZESD v Minister for Immigration

Case [2006] FMCA 459

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZESD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 459
MIGRATION – RRT decision – refusal to accept jurisdiction on second application to Tribunal – previous judicial review of first Tribunal decision – application dismissed for no arguable case.

Federal Magistrates Court Rules 2001, rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.412, 476

SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581
SZESD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1406

SZESD v Minister for Immigration [2005] FMCA 883

Applicant: SZESD
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG249 of 2006
Judgment of: Smith FM
Hearing date: 28 March 2006
Delivered at: Sydney
Delivered on: 28 March 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person
Counsel for the First Respondent: Ms N Johnson
Solicitors for the Respondents: Sparke Helmore

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 $1,500.

  3. Direct that no further application for review of any decision of the Refugee Review Tribunal relating to the decision of the delegate of the first respondent dated 6 June 2002 or for review of that decision of the delegate or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG249 of 2006

SZESD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. This is an application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) filed on 24 January 2006, which seeks an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 January 2006. 

  2. The application had a first court date on 1 March 2006. On that occasion the applicant appeared, and at his request the matter was moved from the docket of Lloyd‑Jones FM into my docket. The applicant appeared before me on that day, and I set the matter down for a hearing today under r.44.12 of the Federal Magistrates Court Rules 2001.  The applicant was warned that his application might be dismissed if the Court was not satisfied that it raised an arguable case for the relief claimed. 

  3. The applicant has been served with a response and affidavit filed by the Minister, giving notice of a previous history of litigation upon which the Minister relies to show the hopelessness of the present application.  The applicant has appeared today, but had no submissions to put to me to show merit in his application. 

  4. The decision of the Tribunal which is the subject matter of the application, is a decision responding to an application for review filed with the Tribunal on 7 October 2005.  It sought review of “a decision to refuse the grant of a protection visa”.  In its decision, the Tribunal identified as the only such decision of a delegate, a decision made by a delegate on 6 June 2002 responding to an application for a protection visa lodged on 29 October 2001.  The Tribunal noted that the applicant had previously sought review of that delegate’s decision, and that the Tribunal had previously handed down a decision affirming the delegate’s decision on 18 December 2002. 

  5. The Tribunal said that it lacked jurisdiction to respond to the second application to review on two grounds: first, that the application was long outside the mandatory time limit applicable under s.412 of the Migration Act; and secondly, that the previous decision of the Tribunal rendered it in effect functus officio to perform any further review of the delegate’s decision.  The Tribunal said: “there is no suggestion that the [first] Tribunal’s decision involved jurisdictional error”. 

  6. In my opinion there is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa.  Most significantly, the first Tribunal’s decision has already been judicially determined not to have involved jurisdictional error.  It is therefore not open to the applicant in the present proceeding to contend that the first Tribunal’s decision can be ignored, nor that his original application for review is still outstanding. 

  7. The judicial determination of that issue was given by Lloyd‑Jones FM in SZESD v Minister for Immigration [2005] FMCA 883. At [36] his Honour upheld a notice of objection to competency which relied on the proposition that the Tribunal’s decision was a “privative clause decision” because it was not affected by jurisdictional error.

  8. His Honour’s judgment was upheld on appeal by Jacobson J in SZESD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1406. On both occasions the applicant was represented by a solicitor.

  9. For the above reasons, I am not satisfied that the application to the Court has raised an arguable case for the relief claimed, and I therefore dismiss the application under r.44.12(1)(a).

  10. The Minister has applied to the Court for an order which might prevent the applicant from vexing the Minister and the Tribunal with further applications for judicial review relating to the processing and decision of his protection visa application.  The history which I have narrated above suggests the suitability of such an order.  Further reasons arise from previous litigation of the applicant in the High Court and in the Federal Court in 2003, which is described in the affidavit filed by the Minister.  The total picture of the applicant’s litigation reveals that he has not understood nor accepted the need for finality in his litigation. 

  11. I therefore propose to exercise the power which has been upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581 at [29], to give a direction to the Registry that no further application for judicial review in relation to the matter should be received without prior leave of the Court.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 April 2006

Details
AGLC
SZESD v Minister for Immigration [2006] FMCA 459
Case
[2006] FMCA 459
Decision Date

CaseChat Overview and Summary

The applicant, Szesd, filed an application under section 476 of the Migration Act 1958 (Cth) seeking to challenge a decision made by the Refugee Review Tribunal on 4 January 2006. The application sought a remedy in relation to a decision by the Tribunal to deny review of a delegate's decision to refuse a protection visa, which was originally lodged on 29 October 2001. This application followed a previous attempt to review the same decision, which was also denied by the Tribunal on 18 December 2002. The applicant’s current application was brought before the Federal Magistrates Court, which was tasked with determining whether the Tribunal had jurisdiction to review the decision and whether the application raised an arguable case.

The central legal issue before the court was whether the Tribunal had the jurisdiction to entertain the second application for review, given that the initial application had already been reviewed and affirmed by the Tribunal. The applicant argued that the Tribunal should have exercised its discretion to review the decision despite the time limit set out in section 412 of the Migration Act. Additionally, the applicant contended that the Tribunal’s prior decision did not constitute a functus officio bar to further review. The Minister for Immigration argued that the Tribunal's earlier decision affirming the delegate’s decision had already been judicially reviewed and determined to be free from jurisdictional error, thus barring any further review.

The court found that the Tribunal’s earlier decision, which had been affirmed as free from jurisdictional error by Lloyd-Jones FM in a previous case, precluded any further review. The court held that the Tribunal did not have jurisdiction to review the decision a second time, as it was bound by the previous decision which had already been determined to be correct by a higher court. Furthermore, the court noted that the applicant had no valid argument that could establish the Tribunal’s jurisdiction in light of the prior judicial determination. Consequently, the court dismissed the application under Rule 44.12, finding that it did not raise an arguable case for the relief claimed.

The court further ordered that the application was dismissed, and the applicant was to pay the Minister’s costs amounting to $1,500. Additionally, the court ruled that no further applications for review of any decisions of the Refugee Review Tribunal related to the delegate’s decision dated 6 June 2002 would be accepted without prior leave of the Court.

Orders

Orders of the court

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 $1,500.

3.

Direct that no further application for review of any decision of the Refugee Review Tribunal relating to the decision of the delegate of the first respondent dated 6 June 2002 or for review of that decision of the delegate or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) filed on 24 January 2006, which seeks an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 January 2006. The application had a first court date on 1 March 2006. On that occasion the applicant appeared, and at his request the matter was moved from the docket of Lloyd‑Jones FM into my docket. The applicant appeared before me on that day, and I set the matter down for a hearing today under r.44.12 of the Federal Magistrates Court Rules 2001. The applicant was warned that his application might be dismissed if the Court was not satisfied that it raised an arguable case for the relief claimed. The applicant has been served with a response and affidavit filed by the Minister, giving notice of a previous history of litigation upon which the Minister relies to show the hopelessness of the present application. The applicant has appeared today, but had no submissions to put to me to show merit in his application. The decision of the Tribunal which is the subject matter of the application, is a decision responding to an application for review filed with the Tribunal on 7 October 2005. It sought review of “a decision to refuse the grant of a protection visa”. In its decision, the Tribunal identified as the only such decision of a delegate, a decision made by a delegate on 6 June 2002 responding to an application for a protection visa lodged on 29 October 2001. The Tribunal noted that the applicant had previously sought review of that delegate’s decision, and that the Tribunal had previously handed down a decision affirming the delegate’s decision on 18 December 2002. The Tribunal said that it lacked jurisdiction to respond to the second application to review on two grounds: first, that the application was long outside the mandatory time limit applicable under s.412 of the Migration Act; and secondly, that the previous decision of the Tribunal rendered it in effect functus officio to perform any further review of the delegate’s decision. The Tribunal said: “there is no suggestion that the [first] Tribunal’s decision involved jurisdictional error”. In my opinion there is no argument available to the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa. Most significantly, the first Tribunal’s decision has already been judicially determined not to have involved jurisdictional error. It is therefore not open to the applicant in the present proceeding to contend that the first Tribunal’s decision can be ignored, nor that his original application for review is still outstanding. The judicial determination of that issue was given by Lloyd‑Jones FM in SZESD v Minister for Immigration [2005] FMCA 883. At [36] his Honour upheld a notice of objection to competency which relied on the proposition that the Tribunal’s decision was a “privative clause decision” because it was not affected by jurisdictional error.