SZIFU v Minister for Immigration

[2006] FMCA 375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 375

MIGRATION – RRT decision – Tribunal declined jurisdiction on second application – previous decision of Tribunal upheld on judicial review – no arguable case.

Migration Act 1958 (Cth), ss.412, 476

SZGWT v Minister for Immigration & Multicultural Affairs [2005] FMCA 1977

Applicant: SZIFU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 310 of 2006

Judgment of: Smith FM

Hearing date: 10 March 2006

Delivered at: Sydney

Delivered on: 10 March 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of  $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 310 of 2006

SZIFU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under s.476 of the Migration Act 1958 (Cth) for an order that the respondent show cause why the Court should not grant relief in relation to a decision of the Refugee Review Tribunal dated 17 January 2006. The decision was sent to the applicant by letter dated 18 January 2006, addressed to him while he was held in immigration detention.

2. The Tribunal had before it an application lodged on 4 January 2006 which did not identify a primary decision which was sought to be reviewed.  The Tribunal identified a decision of a delegate made on 11 April 2003 as the decision which the applicant wished to have reviewed on its merits, and the applicant does not contend that this was incorrect.  The delegate’s decision refused an application for a protection visa which the applicant had lodged on 30 March 2003.

3. In the decision which is the subject of the present proceeding, the Tribunal decided that it did not have jurisdiction to commence a review of the delegate's decision because such a review had already been conducted by the Tribunal, and had given rise to a decision affirming the delegate's decision made by a previous Tribunal member.  That decision had been dated 19 December 2003 and was handed down on 15 January 2004.  The Tribunal concluded that this had the result that it “had already discharged its functions under the Act to review the delegate’s decision”.

4. The legal validity of that first decision of the Tribunal was a matter which has previously been judicially determined.  It was so determined in a previous application to this Court brought by the applicant, which was resolved by a judgment of Nicholls FM in SZGWT v Minister for Immigration & Multicultural Affairs [2005] FMCA 1977. In the course of that proceeding, his Honour addressed the applicant’s concerns about the conduct of his agent, Jack Meng, and also addressed whether the first Tribunal erred by deciding matter without taking any action to invite the applicant to a further hearing after he failed to attend an appointed hearing. His Honour made a finding:

   I can see no error, let alone jurisdictional error in the Tribunal's decision.  The application is dismissed on that basis.

5. The effect, in my opinion, of his Honour's findings and judgment is that it was not open to the applicant to contend, nor the Tribunal subsequently to decide, that it still has jurisdiction to further review the delegate's decision.  I therefore consider that the present Tribunal's decision declining jurisdiction was unarguably correct. 

6. The Tribunal could also have declined jurisdiction on the basis that the application lodged with it on 4 January 2006 was outside the mandatory time limit under s.412(1)(b).

7. The application filed in this Court refers to the history of the matter, but does not identify any argument which could establish jurisdiction in the Tribunal to conduct a further review of the delegate's decision.  At the first Court date on 22 February 2006, I adjourned the application to today for a hearing under rule 44.12 on whether I could be satisfied that the application "raised an arguable case for the relief claimed".  The applicant was put on notice of the Minister's contention that it did not.  He has not filed any further material, and has not presented any argument addressing the question of the second Tribunal's jurisdiction.

8. It is clear to me that what he seeks is to further litigate his complaints about the proceedings before the first Tribunal, and generally to attempt to obtain a further hearing on the merits of his entitlement to a protection visa.  However, for the above reasons I do not consider that he has raised a arguable case for relief which would achieve this.  I therefore consider it appropriate for me to exercise my power of dismissal under rule 44.12(1)(a). 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  20 March 2006