SZGJY v Minister for Immigration
[2008] FMCA 437
•17 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 437 |
| MIGRATION –Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of Bangladesh – abuse of process. |
| Migration Act 1958 (Cth) |
| SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 |
| Applicant: | SZGJY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 414 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 March 2008 |
| Date of Last Submission: | 17 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Application is to pay the First Respondent’s costs fixed in the sum of $1200.00.
No further application for review of any decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister for Immigration and Citizenship made on 19 October 2004 to refuse to grant a protection visa to the applicant is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 414 of 2008
| SZGJY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of Bangladesh. He asks the Court for judicial review of a decision made by the Refugee Review Tribunal finding that it did not have jurisdiction to review the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claims that the Tribunal,
(a)failed to act according to migration law and regulation,
(b)did not apply the correct laws when considering the matter,
(c)misinterpreted the migration laws and
(d)failed to exercise its jurisdiction under the Migration Act.
The first respondent, the Minister for Immigration & Citizenship, has opposed the application on the ground that the application is frivolous and/or vexatious and amounts to an abuse of the Court's process. Ms Anniwell, who appears for the Minister, asks the Court to dismiss the application with costs and to make an order requiring the applicant to seek leave of the Court before filing any further applications.
The background to this matter is that the applicant applied for a protection (Class XA) visa on 11 October 2004. On the 19th of that month a delegate of the Minister refused the application for a visa. The applicant then applied to the Refugee Review Tribunal on
15 November 2004asking for a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 8 April 2005 and handed that decision down on 5 May of that year. The applicant then commenced proceedings in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. On 11 December 2006 Nicholls FM dismissed the application.
The applicant then sought to appeal against that decision of the Federal Magistrates Court. That appeal was heard by Collier J on 26 February 2007 and on 19 March 2007 her Honour dismissed the appeal[1]. On 2 April 2007 the applicant applied to the High Court of Australia for special leave to appeal. That application was refused by Gummow and Kiefel JJ on 12 December 2007[2].
[1] See SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380
[2] See SXGJY v Minister for Immigration & Multicultural Affairs (2007) HCA Trans 783
The applicant then on 2 January 2008 made a further application to the Refugee Review Tribunal for review of the delegate's decision of
19 October 2004. The Refugee Review Tribunal, however, found that it had no jurisdiction to conduct the review. The Tribunal noted that its jurisdiction arises if a valid application is made under s.412 of the Migration Act for review of an RRT reviewable decision. The Tribunal found that where it has received a valid application for review of an RRT reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, the Tribunal is precluded from again considering the matter. As the Tribunal said, it has no jurisdiction to review a delegate's decision twice and referred to Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and SZIIV Minister for Immigration & Multicultural Affairs [2006] FMCA 322.
The Tribunal went on to find that even if circumstances in an applicant's country had changes, this does not provide a basis for the Tribunal to accept a second review application or to reconsider the delegate's decision[3] The Tribunal noted that may potentially be a basis on which the Minister might permit the lodgement of a further protection visa application under s.48B of the Act.
[3] See Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at para.30 and Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at para.7)
What the Tribunal meant to find is that the decision of 19 October 2004 was an RRT reviewable decision. I note that on two occasions the date of the decision is referred to as 19 October 2007. That is clearly a typing error. The Tribunal found that it had accepted a previous application and conducted a review, so it had discharged its functions under s.414 of the Migration Act to review the decision. Thus, it no longer had jurisdiction in relation to that decision.
I am satisfied that that decision is correct. The applicant complained that when he first arrived in Australia that he was new and was not able to express himself properly before the Tribunal. That may be the case, but he had the opportunity in proceedings both in the Federal Magistrates Court and on appeal before the Federal Court to raise that issue if it were an issue leading to jurisdictional error. He has told the Court today that the circumstances in Bangladesh have changed and his circumstances have changed. That may well be the case. It is certainly well known that there has been recent political instability in Bangladesh. However, that is not a ground for a further application for review of a decision refusing a visa that was made on 19 October 2004. The High Court has made that quite clear in the decisions of Bhardwaj and Thiyagarajah, to which I have previously referred.
An applicant for a protection visa who has been unsuccessful may not under s.48A of the Migration Act make a further application for a protection visa while in the migration zone, except in circumstances set out in s.48B of the Migration Act. Section 48B provides that the Minister may determine that s.48A does not apply to a particular person. However, that is not the case here and, in any event, it is only the Minister who can exercise power under s.48B, not the Court.
The fact is that it is all too common for repeat applications to the Refugee Review Tribunal to come before the Court. They are, to my mind, an abuse of the Court's process. I am of the view that the Court should take steps to prevent any further application for review of the delegate's decision, or more correctly, any further application for judicial review of a Tribunal's review of the delegate's decision, come before the Court without leave. The application will be dismissed with costs. I propose to order that no further application for review of any decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration & Citizenship made on
19 October 2004to refuse to grant a protection visa to the applicant is to be accepted for filing without leave of the Court.
There is an application for costs on behalf of the Minister. This is an appropriate matter for costs. The amount sought, $1200, is an appropriate figure.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 8 April 2008
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