SZHYQ & Anor v Minister for Immigration
[2008] FMCA 1674
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1674 |
| MIGRATION – Application for review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) – decision of the Tribunal previously upheld by the Federal Magistrates Court, the Federal Court and the High Court – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth), rr.10.01(2), 44.11(a), 44.12 Migration Act 1958 (Cth), ss.411, 414, 476 |
| Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 SZAQW v Minister for Immigration & Multicultural Affairs [2006] FCA 1332 SZBCE v Minister for Immigration & Multicultural Affairs [2006] FMCA 1897 SZBRB v Minister for Immigration & Citizenship & Anor [2007] FMCA 1093 SZBRB v Minister for Immigration & Citizenship [2007] FCA 1452 SZBWJ & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 164 SZCKB v Minister for Immigration & Multicultural Affairs [2006] FMCA 804 SZHYQ & SZHYR v Minister for Immigration [2007] FMCA 2024 SZHYQ v Minister for Immigration & Citizenship [2008] FCA 734 SZHYQ & Anor v Minister for Immigration & Citizenship & Anor [2008] HCASL 517 SZIHQ v Minister for Immigration & Multicultural Affairs [2006] FMCA 496 SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322 |
| First Applicant: | SZHYQ |
| Second Applicant: | SZHYR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2965 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2008 |
REPRESENTATION
| Advocate for the Applicants: | The first applicant appeared in person on behalf of the applicants with the assistance of a Bengali interpreter |
| Solicitors for the Respondents: | Ms J. Dinihan of Clayton Utz |
ORDERS
The application filed on 14 November 2008 is incompetent and dismissed.
The applicants are to pay the first respondent’s costs and disbursements fixed in the sum of $1,100.
FEDERAL MAGISTRATES |
SYG 2965 of 2008
| SZHYQ |
First Applicant
| SZHYR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings are a show cause application filed in the Sydney Registry of the Federal Magistrates Court on 14 November 2008 seeking a judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 October 2008 and handed down on the same date, affirming a decision of a delegate of the first respondent made on 11 August 2005, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal, numbered 0806095.The first applicant, SZHYQ, filed an affidavit sworn on 14 November 2008 in support of his application.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The application sets out two grounds of review:
1. The Tribunal erred when holding that the first Tribunal discharged its statutory obligations and therefore it had no jurisdiction to consider the application before it in circumstances where the delegate’s decision allegedly reviewed by the first tribunal did not constitute a RRT-reviewable decision by reason that decision notification did not comply with statutory requirements.
2. When the Tribunal assess my case. Since then situation has been changed, particularly the army has grabed the power, which need to be consider by the Tribunal.
The application is supported by an affidavit to which is attached a copy of the Tribunal decision.
The brief litigation history of this matter is as follows:
a)The applicants are husband and wife and claim to be citizens of Bangladesh. They arrived in Australia on 11 June 2005 and lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs on 5 July 2005. On 11 August 2005, a delegate of the Minister for Immigration refused to grant the protection visa and, on 1 September 2005, the applicants applied to the Tribunal for a review of the delegate’s decision. On 7 November 2005, the Tribunal affirmed the delegate’s decision not to grant the applicants a protection visa and handed down its decision on 29 November 2005 (RRT reference N05/52109).
b)On 22 December 2005, the applicants filed an application for judicial review of the original Tribunal decision in the Federal Magistrates Court. On 7 December 2007, Barnes FM dismissed the application for judicial review (SZHYQ & SZHYR v Minister for Immigration [2007] FMCA 2024).
c)On 2 December 2007, the applicants filed a Notice of Appeal in the Federal Court. On 15 May 2008, Greenwood J dismissed the applicants’ Notice of Appeal (SZHYQ v Minister for Immigration & Citizenship [2008] FCA 734).
d)On 11 June 2008, the applicants filed an application for Special Leave to Appeal in the High Court (S252/2008). On 3 September 2008, the applicants’ application for Special Leave to Appeal was dismissed by Hayne and Crennan JJ (SZHYQ & Anor v Minister for Immigration & Citizenship & Anor [2008] HCASL 517).
e)On 20 September 2008, the applicants applied to the Tribunal for a review of the original delegate’s decision. On 20 October 2008, the Tribunal determined that it did not have jurisdiction as it had already discharged its function under s.414 of the Act (RRT reference 0806095). In the findings and reasons, the Tribunal states:
[10] The Tribunal has considered the applicants’ explanation for lodging a fresh application for review but does not accept that it provides any basis for accepting the application lodged on 20 September 2008.
[11] As the delegate’s decisions of 11 August 2005 have already been the subject of a valid review by the Tribunal, they are no longer RRT-reviewable decisions under s.411. Accordingly, the Tribunal no longer has jurisdiction in relation to those decisions.
[12] Having reached this conclusion the Tribunal finds it unnecessary to consider whether the applicants were properly notified of the delegate’s decisions, or whether the review application lodged on 20 September 2008 is invalid for the further reason that it was lodged outside statutory time limit.
f)On 14 November 2008, the applicants filed an application for judicial review of the second Tribunal decision signed on 20 October 2008.
g)The affidavit of Jaimee Dinihan, solicitor, sworn on 5 December 2008, contains annexure “JD1” which is a bundle of documents containing copies of the relevant decisions made by the Tribunal, the Federal Magistrates Court, the Federal Court and the High Court (referred to above). The solicitors for the respondents also filed a response on 8 December 2008, opposing the making of all claims for relief in the application.
Where the Tribunal has received a valid application for review of an RRT-reviewable primary decision and has carried out its duty to review that decision under s.414 of the Act, that decision is no longer an RRT-reviewable decision under s.411: SZBRB v Minister for Immigration & Citizenship & Anor [2007] FMCA 1093 at [13]; SZBRB v Minister for Immigration & Citizenship [2007] FCA 1452 at [21]; SZBWJ & Ors v Minister for Immigration & Citizenship & Anor [2008] FMCA 164 at [41]. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322.
The proposition that the Tribunal cannot accept a second application for review of the same RRT-reviewable decision has been confirmed in a number of repeat applications to both the Tribunal and the Courts. Many of these applications have been found to be an abuse of process, instituted to prolong the applicants’ stay in Australia: SZASP v Minister for Immigration & Citizenship [2007] FCA 771; SZAQW v Minister for Immigration & Multicultural Affairs [2006] FCA 1332; SZIHQ v Minister for Immigration & Multicultural Affairs [2006] FMCA 496; SZIIV; SZCKB v Minister for Immigration & Multicultural Affairs [2006] FMCA 804; SZBCE v Minister for Immigration & Multicultural Affairs [2006] FMCA 1897.
Under the Federal Magistrates Courts Rules 2001 (“the Rules”), the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. Rule 44.11(a) of the Rules permits the Court to dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or
(b)…
(c)…
(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
I note that this power should be exercised cautiously and only in appropriate circumstances.
The applicants’ submissions to the second Tribunal state the following:
I am making this review application to set aside the decision of the Department of Immigration and Citizenship.
When my decision was taken by the Refugee Review Tribunal, Bangladesh was not under state of emergency. At Present Bangladesh is under the state emergency and all kind of human rights are sustained in Bangladesh.
The previous Tribunal has not took this matter in its account and made a decision without any basis.
I have not provided an opportunity to make comments on the materials, which the Tribunal took as source of decision.
I believe the Tribunal set aside the decision of DIAC and provided with an opportunity to ask me for a hearing of my case. (second Tribunal decision at [9])
If circumstances in an applicant’s country have changed, this does not provide a basis for the Tribunal to accept a second review application or to reconsider the delegate’s decision: Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]. However, these circumstances may be the bases upon which the Minister may permit lodgement of a further protection visa application under s.48B of the Act. However this is not a cause of action that can be pursued in either the Tribunal or the Courts but must be subject to a separate application to the Minister.
I order that the application be dismissed pursuant to r.44.12(1)(a) of the Rules on the basis that no arguable case for the relief claimed has been disclosed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 15 December 2008
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