SZHYP v Minister for Immigration
[2008] FMCA 257
•11 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 257 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – repeat application to the Tribunal – no jurisdiction to review a decision twice – abuse of process. |
| Migration Act 1958 (Cth), ss.412, 414, 416, 424A Federal Magistrates Court Rules 2001, r.13.10(a) |
| SZHYP v Minister for Immigration & Anor [2006] FMCA 1267 SZHYP v Minister for Immigration & Anor [2007] FCA 183 SZHYP v Minister for Immigration & Anor [2007] HCA TRANS 650 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZIIV v Minister for Immigration & Multicultural & Multicultural Affairs [2006] FMCA 332 Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 Minister for Immigration & Multicultural Affairs (2002) 209 CLR 597 SZAQW v Minister for Immigration & Multicultural Affairs [2006] FCA 1332 |
| Applicant: | SZHYP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 40 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 February 2008 |
| Date of Last Submission: | 11 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Crittenden |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed under Rule 13.10(a) as an abuse of process of the Court.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $550.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 40 of 2008
| SZHYP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The proceedings before the Court today involve an application by the Minister for Immigration and Citizenship to the Court to dismiss the applicant's substantive application for review of a decision of the Refugee Review Tribunal. The Minister asks the Court to dismiss the proceeding under the provisions of Rule 13.10(a) of the Federal Magistrates Court Rules.
That rule entitles the Court to stay or dismiss a proceeding 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.
The substantive application brought by the applicant by means of an application filed on 8th January 2008 is an application for review of a decision of the Refugee Review Tribunal. The Tribunal found on
12th December 2007that it did not have jurisdiction to deal with the application for review of the delegate's decision brought by the applicant.
The Tribunal came to that finding on the basis that the Tribunal had already reviewed the delegate's decision and it therefore had no jurisdiction to review the decision again.
The background to this matter is that the applicant originally applied for a protection (Class XA) visa on 11th May 2005. A delegate of the Minister refused the application for a visa on 5th August 2005.
The applicant applied to the Tribunal on 31st August in that year for a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 18th November 2005 and the decision was handed down on 1st December in that year.
The applicant then, on the 22nd of 2005, sought judicial review of that decision by means of an application filed in the Federal Magistrates Court. On 18th August 2006 Smith FM dismissed the applicant's application with costs (see SZHYP v Minister for Immigration & Anor).[1]
[1] [2006] FMCA 1267.
The applicant then appealed against his Honour's decision, and on
23rd February 2007Branson J in the Federal Court dismissed the appeal with costs (see SZHYP v Minister for Immigration & Citizenship).[2]
[2] [2007] FCA 183.
The applicant then sought special leave to challenge that finding in the High Court of Australia. However, on 8th November 2007 the High Court dismissed the application for special leave (see SZHYP v Minister for Immigration & Citizenship & Anor).[3]
[3] [2007] HCA TRANS 650
What the applicant then did was go back to the Refugee Review Tribunal and lodged a further application for a review of the delegate's decision. He did this on 28th November 2007. The Tribunal considered the relevant law and noted that the Tribunal's jurisdiction arises if a valid application is made under s.412 of the Migration Act.
The Tribunal went on to find that where it has received a valid application for a review of a 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. The Tribunal has no jurisdiction to review a delegate's decision twice. The Tribunal referred to the decisions of Jayasinghe v Minister for Immigration & Ethnic Affairs[4] and SZIIV v Minister for Immigration & Multicultural Affairs[5]. Even if circumstances in an applicant's country have changed the Tribunal find that this does not provide a basis for the Tribunal to accept the second review application or to reconsider the delegate's decision (see Minister for Immigration & Multicultural Affairs v Thiyagarajah[6] and Minister for Immigration & Multicultural Affairs v Bhardwaj[7]).
[4] (1997) 76 FCR 301.
[5] [2006] FMCA 332.
[6] (2000) 199 CLR 343 at [30].
[7] (2002) 209 CLR 597 at [7].
The Tribunal noted that the principles to which I have referred have been conferred in a large number of Migration cases involving repeat applications to the Court and noted that many of these applications have been found to be an abuse of process instituted for the purpose of prolonging the applicant's stay in Australia, referring to SZAQW v Minister for Immigration & Multicultural Affairs[8], and a number of other matters.
[8] [2006] FCA 1332.
The Tribunal found that the delegate's decision of 5th August 2005 was an RRT reviewable decision but the applicant had previously lodged an application for review of that decision and the Tribunal had conducted a review, and therefore discharged its functions under s.414 of the Migration Act. The applicant had unsuccessfully sought judicial review of the Tribunal's decision.
The Tribunal found that it had already discharged its functions under the Migration Act to review the delegate's decision of 5th August 2005 and that it no longer had jurisdiction in relation to that decision.
The applicant claims in his application the following grounds for relief:
(1)That the Tribunal failed to provide him with natural justice.
(2)That the Tribunal made an error of law, being a jurisdictional error, in that it did not put any weight on the relevant facts or documents.
(3)That the Tribunal relied on irrelevant materials and/or questioned with unnecessary matters.
(4)That the Tribunal failed to exercise its jurisdiction under the Migration Act and/or acted in excess of its jurisdiction.
The applicant told the Court at the hearing today that the Tribunal had not really listened to his claims and had not gone through the proper proceedings. He conceded that on the day of the hearing that lasted for three hours, but he said that the Tribunal did not ask the relevant things. He confirmed that he did have legal representation, Mr Haque, a solicitor, and another lawyer whose name he did not recall. My perusal of the previous decisions of Smith FM and Branson J indicate that Mr Young of counsel appeared for the applicant on each case.
The applicant asked the Court to remit his application to the Refugee Review Tribunal and told the Court that he wished to present evidence of false charges against him in Bangladesh. He said that the provisions of s.424A of the Migration Act would allow the matter to be remitted to the Refugee Review Tribunal, and said that he would be able to provide further evidence to the Tribunal. The applicant was also somewhat critical of the actions of his former legal advisers, claiming that he had not been permitted to present all of his evidence on an earlier occasion. He referred to the change of circumstances and the recent political instability in Bangladesh.
For the respondent Minister Ms Crittenden, Solicitor, replied that the applicant was not in a position to rely on a change of circumstances in Bangladesh and submitted that the provision of s.416 of the Migration Act had no relevance in the circumstances.
The fact is that the Tribunal had previously reviewed the delegate's decision. The applicant had sought judicial review of that Tribunal proceeding, first of all in the Federal Magistrates Court. I have read the decision of Smith FM in SZHYP v Minister for Immigration & Anor, and I note that the issues that the applicant raised, namely a breach of s.424A of the Migration Act and false charges against him in Bangladesh, and to some extent his concerns about the actions of one of his former legal advisers, were all considered and dealt with by his Honour in that case.
The applicant's subsequent appeals to the Federal Court and the High Court have been unsuccessful.
Quite clearly this is a matter where the original Tribunal decision has been reviewed and has been considered in judicial proceedings in this Court already. Appeals to the Full Court of the Federal Court and the High Court of Australia have been unsuccessful.
I am of a view that these proceedings have been commenced for an ulterior purpose and in fact I note that I said in SZAQW v Minister for Immigration & Anor at [19], that the Court has seen a number of applications involving a token spurious reapplication to the Refugee Review Tribunal, purely for the purpose of obtaining a decision in order to ground an application for review to be brought into this Court.
I went on to find that the application for review in that case was clearly groundless, because it would be obvious that the Tribunal had no basis to do anything else but find that it had no jurisdiction.
On appeal to the Federal Court in SZAQW v Minister for Immigration & Multicultural Affairs[9], I note that Jessup J at [8] confirmed the Court at first instance was justified in holding both that the application for judicial review had no prospect of success, and also that it constituted abuse of process.
[9] [2006] FCA 1332.
I am satisfied that the application for review in this case has no prospects of success and the Tribunal did not make an error when it found that it had no jurisdiction to review a decision of the delegate which it had previously reviewed. It follows that the application will be dismissed under the provisions of Rule 13.10 as an abuse of process. I am also satisfied that the application has no prospects of success under Rule 13.10(a). It follows that there will be a costs order in favour of the respondent Minister.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 5 March 2008
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