SZFXL v Minister for Immigration
[2008] FMCA 1682
•16 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFXL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1682 |
| MIGRATION – Application for review of the decision of the Refugee Review Tribunal – application for summary dismissal – Tribunal had no jurisdiction to review the decision – no reasonable prospects of success – application for judicial review summarily dismissed. |
| Migration Act 1958 (Cth), ss.414, 411 Federal Magistrates Court Act 1999 (Cth), s.17A(2) Federal Magistrates Court Rules 2001, rr.13.10(a) Privacy Act 1988 (Cth) |
| SZBRB v Minister for Immigration and Citizenship [2007] FMCA 1093 SZBRB v Minister for Immigration and Citizenship [2007] FCA 1452 SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 SZIIV v Minister for Immigration and Multicultural Affairs [2006] FMCA 322 Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 |
| Applicant: | SZFXL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2876 of 2008 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 December 2008 |
| Date of Last Submission: | 16 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Not legally represented |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Mr Greg Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 6 November 2008 is dismissed pursuant to r 13.10(a) of the Federal Magistrates Court Rules 2001 and s.17A(2) of the Federal Magistrates Court Act 1999 (Cth).
The applicant pay the first respondent’s costs set in the amount of $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2876 of 2008
| SZFXL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
Background
I have before me today an application made on 2 December 2008 by the Minister for Immigration and Citizenship seeking summary dismissal pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”) of an application made under the Migration Act 1958 (Cth) (“the Act”) on 6 November 2008 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 October 2008, which found that it did not have jurisdiction to review the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
The complaints set out in the application (for judicial review) are as follows:
1)The Tribunal ignored “exceptional and new circumstances related to my application for a protection visa”. (This ground is particularised.)
2)“It appears that either the Department of Immigration or the Refugee Review Tribunal’s personnel, have made enquiries to Russian authorities. If it is the case, then the Australian immigration authorities breached the Privacy Act.”
3)“After I posted my application for review, the Tribunal was obliged to give me the opportunity to provide any further evidence/information or at least to provide explanation as to why the application was filed outside the time limit and prompted me to lodge the third application.”
In support of the application for summary dismissal I have before me the affidavit of Gregory Joseph Johnson, a solicitor in the employ of the respondent’s solicitors, sworn on 1 December 2008. I also have before me the applicant’s affidavit made on 3 November 2008 which, in essence, does no more than, properly, put before the Court the Tribunal’s decision.
The applicant also handed up in Court today a document which I understood to be by way of submissions in response to the Minister’s application.
From the material that is before the Court, as submitted by both parties, the following relevant factual chronology can be discerned:
1)The applicant is a national of the Russian Federation who applied for a protection visa in Australia on 19 February 2004.
2)On 8 March 2004 a delegate of the respondent Minister refused this application.
3)On 7 April 2004 the applicant made an application for review with the Tribunal of the delegate’s decision.
4)On 15 June 2004 the Tribunal affirmed the delegate’s decision.
5)On 17 March 2005 the applicant lodged an application for review of the Tribunal’s decision in this Court. I note here Annexure “A” to the affidavit of Mr Johnson.
6)On 5 September 2006 Barnes FM dismissed the application for review pursuant to r.13.03A(c) of the Rules on the basis that the applicant did not appear before the Court at the relevant time. I refer here to Annexure “B” to Mr Johnson's affidavit.
7)On 3 December 2007 the applicant lodged with the Tribunal a second application for review of the delegate’s decision.
8)On 12 December 2007 the Tribunal, differently constituted, found that it had no jurisdiction to review that decision.
It would appear that some time in September or October 2008 the applicant made a third application for review to the Tribunal, and on 10 October 2008 the Tribunal, differently constituted, again found that it did not have jurisdiction to review the delegate’s decision. It is this decision which is the subject of consideration now by this Court.
The Tribunal’s decision
The Tribunal found that as it had previously accepted an application for review of the same delegate’s decision, and it had conducted the review, it had thereby discharged its functions and obligations pursuant to s.414 of the Act, which requires the Tribunal to conduct such a review.
From its decision record it is clear that the Tribunal relied on a number of cases for the proposition that where the Tribunal has previously received a valid application for review and carried out its statutory obligation to conduct the review then any further application for review cannot be said to be made in relation to an RRT-reviewable decision pursuant to s.411 of the Act such as to oblige a further review to take place. I note the Tribunal’s reference to authorities such as SZBRB v Minister for Immigration and Citizenship [2007] FMCA 1093 at [30], SZBRB v Minister for Immigration and Citizenship [2007] FCA 1452 at [21], SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41], Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, SZIIV v Minister for Immigration and Multicultural Affairs [2006] FMCA 322, and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30].
The Tribunal did consider the submission made to it by the applicant which was to the effect that he had evidence that he would be arrested and imprisoned if he were to be returned to Russia, thus explaining his third attempt at seeking review by the Tribunal. The submission also made reference to a matter pressed by the applicant today alleging breaches of the Privacy Act 1988 (Cth) by either personnel in the Minister’s Department or the Tribunal. That submission appears to echo complaints pressed by the applicant before this Court now.
Hearing before the Court
At the hearing today the applicant appeared in person and sought a final hearing of his application. He opposed the Minister’s application for summary dismissal. The applicant was assisted before the Court by an interpreter in the Russian language. Mr G Johnson appeared for the Minister.
The applicant made written submissions to the Court which he handed up during the course of the hearing arguing against the Minister’s position that there was no reasonable cause of action disclosed, and arguing against the Minister’s assertion made in relevant documentation that the proceedings were frivolous or vexatious, and an abuse of the process of the Court. During the course of the hearing today Mr Johnson advised the Court that the Minister no longer sought to press the assertion that the proceedings were frivolous or vexatious, or an abuse of process, in support of the application for summary dismissal.
The Minister proceeded today pursuant to r.13.10(a) of the Rules asking that the Court dismiss the applicant’s application on the basis that there was no reasonable prospect of the applicant successfully prosecuting his claim.
I sought to explain to the applicant at the hearing that I agreed with the Minister that his application has no reasonable prospects of success. I explained to the applicant that the relevant issue before the Court is whether the applicant has any reasonable prospect of showing to the Court or the Court being able to otherwise discern, that the Tribunal made a “legal error” (a jurisdictional error) in finding that it lacked jurisdiction to review the delegate’s decision. I also explained to the applicant that there was no evidence before me that would support his allegations that there had been any relevant breach of the Privacy Act, but that in any event this consideration would not, on its own, show any “legal mistake” on the part of the Tribunal.
There is no error demonstrated in the Tribunal’s decision, which is of course the subject of review by this Court. In my view the Tribunal was correct to hold that it had no jurisdiction to review the delegate’s decision as the delegate’s decision had already been reviewed by the Tribunal on a previous occasion.
Having completed its statutory obligation to conduct the review on a previous occasion, an occasion which did lead to some attempt by the applicant to seek judicial review, I can only agree with Mr Johnson that the situation is clear that once the Tribunal found that it had conducted its statutory task pursuant to s.414 of the Act there was no obligation, and indeed there was no power in the Tribunal to review the decision again.
I cannot discern error in what the Tribunal has done and in all the circumstances I cannot see that there is any utility in allowing this matter to go through to a final hearing given that I cannot see that there is any reasonable prospect of the applicant successfully prosecuting or pursuing his application. Importantly in this regard the applicant does not dispute before this Court the fact that the review by the Tribunal had been previously properly conducted and finalised. His complaint now is that his circumstances relevant to the country of claimed persecution have changed.
Before the Court the applicant pressed in both his application and written submissions, that there were new and exceptional circumstances relating to his claims for protection and that the Tribunal should have considered these changed circumstances, or at the very least given the applicant the opportunity to further explain.
Unfortunately for the applicant such a complaint, as I attempted to explain to him this morning, does not reveal error on the part of the Tribunal such that he could succeed or have a reasonable prospect of succeeding before this Court. The scheme of the Migration Act relevantly requires the Tribunal to conduct and finalise the review. With reference to the statutory scheme, and to relevant authorities, to which I have already referred, I cannot see that once having done that that the Tribunal has the power to, in effect, reopen the applicant’s case even where new information may have come to light, or indeed to accept another application for review.
Such circumstances are properly addressed under the scheme of the Act by the applicant seeking a determination by the Minister pursuant to s.48B of the Act to lift the prohibition contained in s.48A from making a further application for a protection visa. Indeed, the documentation provided by the applicant to the Court reveals that he did properly pursue such a course by writing to the previous occupant of the office of Minister for Immigration and Citizenship. Alternatively, the applicant could seek Ministerial intervention pursuant to s.417 of the Act, an avenue which the applicant advised the Court today he had also (unsuccessfully) taken.
None of these matters, as I explained to the applicant this morning, are of assistance to him in revealing error on the part of the Tribunal in its determination that it had no jurisdiction to review his application for a third time.
In relation to allegations of breaches of the Privacy Act by either the personnel in the Minister’s Department or in the Tribunal there are no particulars before the Court, let alone evidence, to support this allegation. However, as I put to the applicant today even if it could be said that such breaches had occurred then such a circumstance would still not assist the applicant in revealing error on the part of the Tribunal in making the decision which is the subject of review before this Court now.
I noted with the applicant this morning that there are procedures established by the Privacy Act to deal with the type of allegation he now makes and that it is a matter for him as to whether he wishes to proceed with the Privacy Commissioner in this regard. A determination by the Privacy Commissioner may be the subject of consideration in this Court in terms of any enforcement, but that is a far different and separate matter and does not go to the issue of whether the Tribunal’s decision reveals error of the type that could assist the applicant either today, or even if the matter were to be set down for a final hearing.
The third ground of complaint in the application is that the Tribunal was obliged to give the applicant an opportunity to provide any further evidence or to provide an explanation as to why the applicant’s third application for review was filed outside the relevant time limit.
As Mr Johnson correctly, in my view, submitted, the Tribunal’s decision did not turn on any matter relevant to the applicant making his third application for review outside the relevant time limit.
This was not the basis on which the Tribunal found that it did not have jurisdiction to consider the applicant’s application. This was plainly, as Mr Johnson submitted, not a case where there was a refusal to consider what the applicant was putting because of any time limit. As I have already said, this was a case where the Tribunal found it lacked jurisdiction on the third occasion that the applicant had approached it because it had already fulfilled its statutory obligation consequent upon the first occasion that the applicant approached the Tribunal with an application for review.
I note also that in his written submissions the applicant made reference to his approach to the Minister seeking Ministerial exercise of the Minister’s discretion pursuant to s.48B of the Act. To the extent that it may be said that the Tribunal should have considered the matters that the applicant had put to the Minister in his request, then again any perceived failure by the Tribunal to have fully considered those matters does not assist the applicant today. The Tribunal’s finding that it lacked jurisdiction was, in my view, on what was before it, a decision that does not reveal error. Such a finding plainly removes the obligation on the Tribunal to otherwise consider an applicant’s (new) claims.
Once having properly reached this view the Tribunal was not obliged to consider the application, but it could not proceed any further.
In all, therefore, I cannot discern error in the Tribunal’s analysis or indeed with its ultimate determination that it lacked jurisdiction to proceed with the applicant’s latest application for review. On this basis, and in the absence of anything else relevant before this Court to support the applicant’s position, the applicant’s application has no reasonable prospects of success, and properly, should not be permitted to proceed further before this Court.
I agree therefore with the Minister that the application should be dismissed pursuant to r.13.10(a) of the Rules and will make that order accordingly.
Costs
In my view, it is appropriate that an order for costs be made. There is nothing before the Court, nor despite opportunity has the applicant put anything to the Court to argue against the making of such an order. As to the amount sought, I take the view that what is set out in the relevant Schedule to the Rules of this Court is a guideline and the Court is not bound by the amounts set out in that Schedule. The Court is bound by a consideration of what is reasonable in all the circumstances.
While this is a matter that has concluded on the first date that the parties have come before the Court, this has not been a short hearing which is more typical of what occurs at the first Court date. In my view, the Minister has been put to some expense beyond what would normally and reasonably be expected at a first Court date and in particular the filing by way of affidavit of additional material made necessary by the way that the applicant chose to put his application before the Court.
I make no criticism whatsoever of the applicant in saying that, but simply note that as a matter of fact it did require the Minister to respond and the Minister was put to some additional legal work. On that basis an amount of $1,600 is, in my view, a reasonable amount and I will make an order in that amount.
Postscript
I note, by way of postscript, that it is properly a matter now for the applicant as to how he may wish to proceed in pursuing the other matters, including the Privacy Act concerns and his claimed change in circumstances with the Minister.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 12 January 2009
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