SZEWV v Minister for Immigration & Anor
[2007] FMCA 922
•4 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 922 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa. PRACTICE & PROCEDURE – Application an abuse of process – summary dismissal – second application to Tribunal to review delegate’s decision – out of time. |
| Migration Act 1958 (Cth), s.412 |
| SZEWV v Minister for Immigration [2005] FMCA 1525 SZEWV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 234 SZEWV v Minister for Immigration & Indigenous Affairs [2006] HCA Trans 562 |
| Applicant: | SZEWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 573 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 June 2007 |
| Date of Last Submission: | 4 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2007 |
REPRESENTATION
| The Applicant: | Applicant appeared in person |
| Solicitor for the Respondents: | Mr Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 573 of 2007
| SZEWV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application to this Court is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) that was signed on
30th January 2007. In that decision the Tribunal found that it did not have jurisdiction in this matter.
The applicant filed an application seeking orders in the nature of mandamus, certiorari and prohibition, and gave grounds that the Tribunal failed to accord natural justice, that it made an error of law, being jurisdictional error, and that it identified the wrong issue and that it either failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (“the Act”) or acted in excess of its jurisdiction. The applicant has since filed an amended application. In that amended application he seeks writs of certiorari, mandamus and prohibition. He sets out three grounds claiming, first, the Tribunal failed to accord natural justice, second, that the Tribunal failed to understand the genuine issue of his case, and third, the Tribunal failed to uphold natural justice.
Particulars of the first natural justice claim are that the applicant said that his previous migration agent was negligent. As to the second claim, he says that the Tribunal failed to understand the genuine issue of his claim, which is that his previous migration agent was negligent, and therefore the Tribunal did not look at his case and, as such, he could not provide evidence and witnesses before the Tribunal to support his claims. As to the third ground, again there is a claim of a denial of natural justice. The applicant said that he wished to attend the hearing so that he could get the opportunity to express details of his persecution in India. The Tribunal did not invite him to attend a hearing, instead finding that it had no jurisdiction. Accordingly, he said he was denied natural justice.
Of course if it is the case that the Tribunal has no jurisdiction, then there is no right to appear at a hearing and no denial of natural justice. The first respondent, the Minister, claims the application ought to be dismissed because it does not disclose an arguable jurisdictional error and it is not affected by jurisdictional error for a variety of reasons, including the fact that there has been an earlier decision of the Tribunal of which the applicant sought judicial review in this Court and other Courts and that the applicant again applied to the Tribunal again seeking review of the delegate's decision.
Unfortunately, the Court sees from time to time situations where an applicant seeks a review of a decision of the Refugee Review Tribunal and brings that application to Court and is unsuccessful. In such cases – and this is such a case – the applicant then appeals and even seeks leave to appeal to the High Court. When those proceedings are unsuccessful the applicant, as has happened in this case, then attempts to restart proceedings by reapplying to the Tribunal to review the delegate's decision. Of course it must follow that that application to the Tribunal is out of time as there is a time limit prescribed by s.412 of the Act.
In any event, if it is the same delegate's decision that has previously been reviewed, then it is not open to the Tribunal to review it again. The Tribunal does not have the power to review its own decision.
As can be seen from the response filed on behalf of the Minister, this is an example of a pattern of application, appeal and then reapplication for review.
The circumstances are that the applicant applied for a protection visa on 4th December 2003. On 6th February 2004 a delegate of the Minister refused that visa. On 15th April 2004 the applicant applied to the Tribunal for a review of that decision. It is submitted, and I believe correctly, that the applicant must have received notice of the delegate's decision by 15th April 2004 at the latest. On 30th June 2004 the Tribunal found that it did not have jurisdiction to determine the matter. The applicant then sought judicial review of that decision and on
10th October 2005 that application came before Lloyd-Jones FM.
His Honour noted that the Tribunal in that decision had found that the application was received by the Tribunal outside the mandatory time limit and therefore was not a valid application. The Tribunal found that it had no valid jurisdiction to review the delegate's decision.
The Federal Magistrates Court handed down its decision on
28th October 2005. His Honour found that there was no jurisdictional error and dismissed the application with costs. The citation for that decision is SZEWV v Minister for Immigration [2005] FMCA 1525. The applicant then appealed to the Full Court of the Federal Court, the citation to which decision is SZEWV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 234. The appeal was dismissed. The applicant then sought special leave to appeal to the High Court of Australia and in proceedings SZEWV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA Trans 562 the High Court refused the application for special leave.
What then happened on 20th October 2006 is the applicant again applied to the Tribunal to review the decision of the delegate which it had already reviewed.
Obviously the application was out of time as it had not been made within 28 days after the applicant was notified of the delegate's decision as prescribed by s.412 of the Act. It is also the case that the Tribunal had already made its decision and it is hardly surprising, therefore, that on 30th January 2007 the Tribunal found that it did not have jurisdiction to determine the matter.
I am satisfied that there is no error in that decision and it follows that this application must be dismissed. The application is dismissed.
There is an application for costs on behalf of the respondent Minister. The applicant has been wholly unsuccessful in his claim and I am satisfied it is an appropriate amount for a costs order. I note Mr Prince's submissions on behalf of the applicant as to the quantum of the costs, which have been assessed at $2,500.00. The application has been once before a Registrar. It is before me. A response has been prepared, a Court Book has been prepared and there has been argument today. Costs are discretionary. I am prepared to allow $2,250.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 12 June 2007