SZILB v Minister for Immigration
[2006] FMCA 873
•1 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 873 |
| MIGRATION – Whether Refugee Review Tribunal had jurisdiction to entertain review of earlier Refugee Review Tribunal decision– whether Refugee Review Tribunal functus officio by earlier Refugee Review Tribunal decision – whether 28 day time limit for review of delegate’s decision mandatory. |
| Migration Act 1958 (Cth), s.412 Federal Magistrates Court Rules 2001, pt2(1)(b) of sch.1; pt.2(1)(c) of sch.1 |
| SZFIN v Minister for Immigration [2005] FMCA 550 SZFIN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 889 SZEBS v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 456 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 Jayasinghe v Minister for Immigration and Ethnic Affairs and Another 76 FCR 301 |
| Applicant: | SZILB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG624 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 June 2006 |
| Date of last submission: | 1 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2006 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Mr B. Cramer, Blake Dawson Waldron |
ORDERS
The application before this Court is dismissed
That the applicant pay the First Respondent’s costs in an amount of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG625 of 2006
| SZILB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed by the applicant on 27 February 2006 in this Court, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 January 2006. The Tribunal determined that it did not have jurisdiction to hear the application as the matter had been earlier dealt with by a differently constituted Refugee Review Tribunal.
The applicant was unrepresented before the Court this morning and was invited to put whatever submissions he wished in support of his application. The applicant stated that the first time he put in an application to the Tribunal was in 1998. In fact the application for review by the Tribunal was lodged by the applicant on 10 June 1997. Following lodging this review application the applicant said that there were changes in his life. In January 2006 he lodged a second review application with the Tribunal. However the Tribunal refused his application and told him to apply to the Federal Court of Australia.
It was explained to the applicant that this Court only had jurisdiction in respect of the Tribunal’s 2006 decision if there was a legal error such that the Tribunal was incorrect in concluding that it had no jurisdiction to entertain the applicant’s application.
The applicant’s application before this Court relied on the following grounds:
“1. Since the rejection of my application by R.R.T 1998, my situation in Australia has changed and R.R.T refuse to consider my new circumstance.
2. Since 1998, my second baby Stephen was born in Australia in 1999. I am afraid of beening [sic] prosecuted to go back to china.
3. I also involving in the Manning Incident in VIDC May 2005.
As well, I began to practising falun gong in Villawood Immigration Centre.”
Before I come to deal with the grounds I will recite briefly the relevant procedural history of the applicant in seeking a protection visa application.
On 24 February 1997, the applicant applied to the Department of Immigration and Ethnic Affairs (“the Department”) for a protection visa application. That application was refused by a delegate of the first respondent (“the Delegate”) on 8 May 1997.
On 11 June 1997, the applicant lodged an application with the Tribunal seeking a review by way of hearing de novo of the Delegate’s decision. The Tribunal invited the applicant to attend a hearing in respect of that application. The applicant failed to appear at the hearing.
On 14 September 1998, the Tribunal affirmed the decision of the Delegate to refuse a protection visa to the applicant. On 24 December 2004 the applicant sought judicial review of the Tribunal’s decision. On 22 April 2005 that application was dismissed by Barnes FM in which she concluded that there was no jurisdictional error in the decision of the Tribunal (SZFIN v Minister for Immigration [2005] FMCA 550).
The applicant then sought leave from the Federal Court of Australia for an extension of time to appeal the decision of Barnes FM, that application being made on 26 May 2005. On 17 June 2005 that application for an extension of time to seek leave to appeal was refused by Edmonds J and in the course of his decision in dismissing the application he found that there was no arguable ground of appeal in respect of the decision (SZFIN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 889).
On 4 January 2006, the applicant lodged another application with the Tribunal for review of the Delegate’s decision made on 8 May 1997. On 17 January 2006 the Tribunal, after noting a Tribunal differently constituted had affirmed the decision under review on 14 September 1998, dismissed the applicant’s application on the basis that the Tribunal did not have jurisdiction to review the decision refusing to grant the applicant a protection visa. The Tribunal’s reasons for decision are set out below:
“The Tribunal has before it the Department’s file, which includes the protection visa application, the letter notifying the applicant of the delegate’s decision and the decision record, as well as the Tribunal’s decision relating to the previous Tribunal review (N97/16853).
The Tribunal considers the application for review lodged on 11 June 1997 to be a valid application, The Tribunal finds that the Tribunal already made a decision on this matter on 14 September 1998. The Tribunal notes that the Minister has not allowed the applicant to lodge a further application for a protection visa under s.48B of the Act and there has been no subsequent protection visa application or primary decision. As the Tribunal has already discharged its functions under the Act to review the delegate’s decision dated 8 May 1997, it no longer has jurisdiction in relation to that decision: see Jayasinghe v MIEA & Anor (1997) 76 FCR 301. Bhardwaj (2002) 209 CLR 597. The Tribunal notes that the applicant has unsuccessfully sought judicial review of the Tribunal’s earlier decision: SZGWT v MIMIA (FMCA 8 December 2005). Thus, there is no reason to think that the Tribunal’s review of the delegate’s decision involved jurisdictional error: cf MIMIA v Bhardwaj (2002) 209 CLR 597.
DECISION
The Tribunal does not have jurisdiction to review the decision refusing to grant the applicant a protection visa.”
The first respondent submits that the grounds appear to be an attempt to seek impermissible merits review or humanitarian consideration and that, in the absence of further particulars, it is not possible to respond to the claims. Given the limited nature of the review available to this Court on the issue of whether or not the Tribunal was correct in deciding that it had no jurisdiction to proceed to entertain the applicant’s application, the grounds identified cannot be relevant and therefore they are dismissed.
The first respondent submits that the Tribunal was correct in concluding that it had no jurisdiction on 3 bases.
The first basis is that there had been a previous hearing by the Tribunal, although differently constituted, reviewing the Delegate’s decision. For those reasons the Tribunal was functus officio.
In support of that submission, the first respondent referred the Court to the decision of Jacobson J in SZEBS v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 456 (“SZEBS”) at para. 9 where his Honour referred to the decision of Merkel J in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18, in which he held that:
“…the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act.”
The first respondent also referred to Jayasinghe v Minister for Immigration and Ethnic Affairs and Another 76 FCR 301 in support of her submission that the Tribunal does not have power to reconsider or reopen its final decision on a review determining the substantive application. I refer in particular to page 311 of Federal Court report of that decision where Goldberg J stated:
“I do not consider that the Tribunal has the power to reconsider or reopen its final decision on a review determining the substantive application”
There is nothing before this Court to suggest that the decision of the Tribunal made on 14 September 1998 was not a valid decision. In the circumstances, this basis alone is sufficient to dismiss the applicant’s application this morning.
The second basis relied upon by the first respondent is that the applicant’s application to the Tribunal in 2006 seeking review of the Tribunal’s decision made in 1998 was outside the mandatory time limit of 28 days provided by s.412 of the Migration Act 1958 (Cth) (“the Act”) in respect of a review of the Delegate’s decision.
There is no power to override the time limitations prescribed by s.412(1)(b) of the Act.(VEAN of 2002 v Minister for immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [33] Gray, Whitlam and Mansfield JJ; Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [31] Jacobson J).
In the circumstances, this would also be a sufficient ground for the applicant’s application before this Court to be dismissed.
The third basis referred to by the first respondent upon which this Court could consider the applicant’s application before it is that the application could be dismissed as an abuse of process having regard to the fact that there was a significant delay in seeking review of the 1998 Tribunal decision.
This basis, to some extent, it involves an issue of delay that was not explored with the applicant this morning in any detail. Neither did he seek and nor was he given an opportunity to seek leave of the Court to lead oral evidence in respect of that delay.
For those reasons I do not propose to deal with this third basis contended for by the first respondent. However it is plainly not necessary for the first respondent to satisfy the Court that the proceeding before this Court is an abuse of process before the applicant’s application could be dismissed.
For the reasons given above, and having considered and decided upon the first and second contentions of the Minister for the reasons given above, the application before this Court is dismissed.
Costs
The first respondent seeks costs fixed in an amount of $5000 in accordance with pt.2(1)(c) of sch.1 of the Federal Magistrate Court Rules 2001 as recently amended. That sum is fixed pursuant to that subsection “if the proceeding is concluded at a final hearing - $5000.”
Part 2(1)(b) of sch.1 of the Federal Magistrates Court Rules 2001 contemplates a conclusion of a proceeding that does not involve the full preparation and costs incurred by the preparation for a full final hearing.
The amount in respect of those applications is $2500. The issues in this case are those that may well have prompted an application by way of motion for summary dismissal prior to the amendments. Generally those matters did not require the first respondent to be put to the costs and time of the preparation of a green book.
In this matter it has been necessary for those costs and time to be incurred. The matter has also required submissions of the comprehensive and thorough nature prepared by the solicitor for the first respondent. For those reasons, in my view, there has been more time and work undertaken than would be contemplated by the costs provided in pt.2(1)(b).
However, as I have said earlier, it is also less time and expense having regard to the single issue of jurisdiction and the short decision of the Tribunal. In the circumstances, it is my view that an appropriate costs order is in the order of $4000.
ORDERS DELIVERED
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 6 July 2006
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