SZHQR v Minister for Immigration
[2006] FMCA 282
•20 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 282 |
| MIGRATION – RRT decision – finding no jurisdiction to entertain second application to Tribunal – Tribunal decision on first application upheld in previous judicial review – validity of first decision is res judicata – application dismissed. |
Migration Act 1958 (Cth), ss.412(1)(b), 424A(1), 474(1), 477(1A), 483A
Migration Regulations 1994 (Cth), reg.4.31
SZGNR v Minister for Immigration [2005] FMCA 1166
| Applicant: | SZHQR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3429 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 20 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3429 of 2005
| SZHQR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 22 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of an opinion by the Refugee Review Tribunal (“the Tribunal”) explained in a statement of reasons dated 25 October 2005. The Tribunal said that it did not have jurisdiction to further review a decision of a delegate made on 26 June 2003 which refused to grant a protection visa to the applicant.
The matter has a history which is as follows.
The applicant arrived in Australia in March 2003 on a one month temporary business visa. He lodged an application for a protection visa on 31 March 2003 giving a residential and postal address at Campsie, and also authorising an agent, Mr Jingxin Wu, to receive correspondence on his behalf. The application attached a short statement in which the applicant claimed that he had been persecuted by authorities in his country of nationality, The People’s Republic of China, for promoting the practice of Falun Gong.
A delegate refused the application on 26 June 2003, pointing out that the claim was “broad, vague and lacking in relevant detail”.
An application for review by the Refugee Review Tribunal was filed on 25 July 2003. In it, the applicant gave the Tribunal his previous home address, and also a new postal address being a post box at Haymarket. No agent was authorised to receive correspondence. The application did not provide further details of his claims.
An invitation to attend a hearing was sent to both of the addresses given by the applicant. The applicant did not attend before the Tribunal, and it was unable to contact the telephone number given. The Tribunal in a decision handed down on 9 March 2004 affirmed the decision of the delegate. The Tribunal was not satisfied on the basis of the information originally provided by the applicant that his claims were true.
The applicant applied to this Court on 16 June 2005 seeking orders compelling the Tribunal to redetermine the application according to law. The application came before Scarlett FM on 4 August 2005. His Honour dismissed the application (see SZGNR v Minister for Immigration [2005] FMCA 1166).
It is clear that his Honour addressed whether the Tribunal’s decision was vitiated by jurisdictional error and found that it was not. His Honour reached a conclusion that “the [Tribunal] decision is a privative clause decision. There is no reviewable error”. His Honour therefore upheld an objection to competency based on s.477(1A) based on the failure of the applicant to bring his application within the 28 day time limit applicable to privative clause decisions.
In the course of his judgment, Scarlett FM addressed the applicant’s complaint that his failure to attend the Tribunal’s hearing was due to wrong advice by his agent. His Honour concluded that there may have been impropriety by the agent. However, it is clear that his Honour considered that any such impropriety did not allow him to order the Refugee Review Tribunal to rehear the matter.
The applicant did not appeal from the judgment of Scarlett FM. The issue of whether the Tribunal had completed its jurisdiction to review the delegate’s decision was therefore finally concluded by judicial determination, and it is not possible for the applicant to reopen that issue in the present proceedings.
The applicant has not appreciated the final effect of Scarlett FM’s judgment. On 12 September 2005 he lodged a second application with the Refugee Review Tribunal again seeking review of the delegate’s decision.
After inviting the applicant to comment upon whether it had jurisdiction, the Tribunal published its decision dated 25 October 2005, which is the subject matter of the present application, that it did not have jurisdiction. It gave two reasons: first, that it had already discharged its function under the Act to review the delegate’s decision; and secondly, that the application for review was received outside the mandatory time limit applicable to applications for review by the Tribunal (see s.412(1)(b) and reg.4.31 of the Migration Regulations 1994 (Cth)).
In my opinion, the Tribunal’s conclusion that it did not have jurisdiction to reopen the matter was plainly correct for both reasons. I therefore do not have power to give the orders now sought by the applicant in his present application and must dismiss it.
I note that the applicant has filed an amended application which appears to argue that the decision of the first Tribunal was vitiated by jurisdictional error and “there is not decision at all”. The jurisdictional error which is contended is a failure on the part of the first Tribunal to comply with its duty under s.424A(1). The implication is that the applicant’s original application for review to the Tribunal is still outstanding, so that the Tribunal can be the subject of an order by way of mandamus for it to further hear the matter.
However, that contention fails due to the judicial determination of Scarlett FM that the first Tribunal’s decision was not affected by any jurisdictional error. In my opinion, the application of ss.474(1) and 477(1A) in relation to the decision of the first Tribunal is res judicata, and it is not now open to the applicant to seek to relitigate the validity of that decision, even by raising an argument which was not put to Scarlett FM.
Moreover, as I have indicated above, the application which is presently before me is not framed as an application for review of the first Tribunal’s decision, but as an application to review the second Tribunal’s refusal to exercise jurisdiction in response to the applicant’s second application for merits review. That application was plainly incompetent.
For the above reasons I consider that I should dismiss the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 2 March 2006