SZHOK v Minister for Immigration

[2008] FMCA 1104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHOK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1104

MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – second application to Tribunal for review of a decision of a delegate of the first respondent.

Migration Act 1958 (Cth) s.414
Federal Court of Australia Act 1976 s.31A
Federal Magistrates Court Act 1999 s.17A
Federal Magistrates Court Rules r.13.10(a)

Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Jayasinghe v Minister for Immigration and Ethnic Affairsand Another (1997) 76 FCR 301
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZHOK v Minister for Immigration & Anor [2006] FMCA 1479
SZHOK v Minister for Immigration & Citizenship (2007) FCA 666
SZIIV v Minister for Immigration & Anor [2006] FMCA 322
White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298

Applicant: SZHOK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 589 of 2008

Judgment of: Barnes FM

Hearing date: 24 July 2008

Delivered at: Sydney

Delivered on: 24 July 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. That the applicant's application of 12 March 2008 be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. That the applicant pay the costs of the first respondent fixed in the sum of $2,500.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 589 of 2008

SZHOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of an application in a case filed by the first respondent on 8 May 2008 seeking summary dismissal of an application filed by the applicant in this Court on 12 March 2008 which sought review of a decision of the Refugee Review Tribunal signed on 20 February 2008.  The Tribunal found that it had no jurisdiction as it had already reviewed the decision of the delegate of the first respondent in issue. 

2. The first respondent seeks summary dismissal pursuant to r.13.10 of the Federal Magistrates Court Rules and relies on an affidavit sworn by Greg Johnson and filed on 8 May 2008.

3. It is apparent from the material before the Court, including that affidavit and the Court Book, that the applicant applied to the Department of Immigration and Citizenship for a protection visa in April 2005.  The application was refused on 9 May 2005 and the applicant sought review by the Tribunal.  The Tribunal affirmed the delegate's decision by decision handed down on 6 October 2005.  The applicant unsuccessfully sought judicial review of the Tribunal decision in this Court (see SZHOK v Minister for Immigration & Anor [2006] FMCA 1479). He then appealed to the Full Court of the Federal Court, but was unsuccessful (see SZHOK v Minister for Immigration & Citizenship [2007] FCA 666). He sought special leave to appeal to the High Court. The application for special leave to appeal was dismissed by Gummow and Keifel JJ on 6 February 2008.

4. On 11 February 2008 the applicant again sought review by the Tribunal of the same decision of the delegate. On 20 February 2008 the Tribunal considered that application. After referring to the applicable provisions in the Migration Act and Regulations, the Tribunal found that where it had received a valid application for review of a RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act it was precluded from again considering the matter as it has no jurisdiction to review a delegate's decision twice. The Tribunal referred to the decision of the Federal Court in Jayasinghe v Minister for Immigration and Ethnic Affairsand Another (1997) 76 FCR 301 and the decision of this Court in SZIIV v Minister for Immigration & Anor [2006] FMCA 322 in support of that proposition. The Tribunal acknowledged that this was so even if circumstances in an applicant's country had changed. It observed that these principles had been confirmed in a large number of migration cases involving repeat applications to the Tribunal relating to the same primary decision.

5. The Tribunal found on the material before it that the delegate's decision of 9 May 2005 was an RRT-reviewable decision, but that the applicant had previously lodged an application for review of the same decision. The Tribunal had accepted that application and conducted a review and had therefore already discharged its functions under s.414 to review the decision. Hence it no longer had jurisdiction in relation to that decision. Thus it was unnecessary for the Tribunal to consider whether the review application lodged on 11 February 2008 was lodged outside the prescribed time period and invalid on that basis.

6. As indicated, the first respondent seeks summary dismissal. It was clarified in oral submissions that the primary basis for the application was under r.13.10(a) which now provides for summary dismissal if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

7. I have borne in mind the caution to be exercised in relation to an application for summary dismissal and that an order which prevents a party from pursuing a claim should only be made in a very clear case (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). I have also borne in mind the test applicable under r.13.10(a), as to which see the discussion by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720 in relation to the assessment of reasonable prospects of success for the purposes of the similarly worded s.31A of the Federal Court of Australia Act 1976 (and also see s.17A of the Federal Magistrates Court Act 1999).

8. In this case it is clear that the Tribunal's conclusion that as there had been a prior review of the delegate's decision it no longer had jurisdiction to review that decision because it had discharged its functions under the Act to carry out the review was correct (see Jayasinghe referred to by the Tribunal and also SZASP v Minister for Immigration and Citizenship [2007] FCA 771). The Migration Act does not oblige the Tribunal to extend an invitation to a hearing to an applicant in these circumstances, contrary to what seems to be submitted in the application of 12 March 2008.

9. I am satisfied that the application for review of the second Tribunal decision is bound to fail (see White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 at [45] – [60] per Lindgren J). There has been no argument put before the Court by the applicant (and nor is there any argument available to the applicant in the circumstances of this case) which holds any prospect of success in establishing that the Tribunal had jurisdiction to consider afresh his entitlement to a protection visa or that it fell into jurisdictional error in finding that it had no jurisdiction. I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting the proceeding and that the application should be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules.

10. In these circumstances it is not necessary for the Court to determine whether the proceedings are also frivolous or vexatious or an abuse of the process of the Court (but see the discussion by Moore J in that respect in SZASP).  Accordingly I intend to make the order that the first respondent seeks for summary dismissal of the application.

    RECORDED : NOT TRANSCRIBED

11. The application for summary dismissal has been successful. Hence the applicant has been unsuccessful in the proceedings in this Court. The first respondent seeks costs in the sum of $2,500 in accordance with the provisions of the Federal Magistrates Court Rules. The applicant told the Court that he cannot work and hence is unable to pay this amount. However, in the circumstances before me the applicant's lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent.

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

Associate: 

Date:  4 August 2008