SZIOF v Minister for Immigration
[2008] FMCA 1512
•6 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1512 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 65, 411, 412, 414, 424A Migration Regulations 1994 |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 SZIOF v Minister for Immigration & Anor [2007] FMCA 1321 SZIOF v Minister for Immigration & Anor [2008] HCASL 394 |
| Applicant: | SZIOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2467 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 6 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant to review any migration decision relating to her protection visa application lodged on
23 September 2005be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2467 of 2008
| SZIOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a show cause application filed on 22 September 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 August 2008. The Tribunal found it had no jurisdiction in the matter because the decision of the delegate in the matter had previously been reviewed by the Tribunal.
The application was supported by a short affidavit filed with it. Paragraph 1 of the affidavit asserts a failure of procedural fairness.
I received that paragraph as a submission. Paragraph 2 introduces the decision of the Tribunal which I received as evidence.
The Minister filed a response on 17 October 2008. That response seeks summary dismissal of the application. The response is supported by the affidavit of Jaimee Dinihan filed on 14 October 2008. I received that affidavit and the documents exhibited to it. I accept the evidence of
Ms Dinihan.
The relevant background circumstances are set out in her affidavit from paragraph 4 through to paragraph 20. I incorporate, with necessary amendments, those paragraphs of the affidavit:
Application for protection (class XA) visa
On 23 September 2005, the applicant lodged an application for a protection (class XA) visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
On 31 October 2005, a delegate of the first respondent (“delegate”) determined not to grant a protection visa to the applicant.
First Tribunal review application
On 17 November 2005 the applicant applied to the Tribunal for review of the delegate’s decision.
On 30 January 2006, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and handed down its decision on 21 February 2006 (“Tribunal decision”).
Federal Magistrates Court proceedings (SYG896/2006)
On 27 March 2006, the applicant filed an application for judicial review of the Tribunal decision in the Federal Magistrates Court.
On 18 September 2006, the Honourable Federal Magistrate Scarlett remitted the matter by consent to the Tribunal to be determined according to law.
Second Tribunal review
On 8 February 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and handed down its decision on 20 February 2007 (“second Tribunal decision”).
Second Federal Magistrates Court proceedings (SYG917/2007)
On 19 March 2007, the applicant filed an application for judicial review of the Tribunal decision in the Federal Magistrates Court.
On 26 June 2007, the applicant filed an amended application for judicial review of the Tribunal decision in the Federal Magistrates Court.
On 17 August 2007, the Honourable Federal Magistrate Cameron dismissed the application for judicial review[1].
[1] SZIOF v Minister for Immigration & Anor [2007] FMCA 1321
Federal Court proceedings (NSD1826/2007)
On 6 September 2007, the applicant filed a notice of appeal in the Federal Court of Australia.
On 28 November 2007, the Honourable Justice Collier dismissed the applicant’s appeal[2].
High Court proceedings (S651/2007)
On 24 December 2007, the applicant filed an application for special leave to appeal in the High Court of Australia (proceedings S651/2007).
On 6 February 2008, the applicant’s application for special leave to appeal was dismissed[3].
Third Tribunal review
On 11 August 2008 the applied again to the Tribunal for review of the delegate’s decision.
On 25 August 2008, the Tribunal determined that it did not have jurisdiction as it had already discharged its function under s.414 of the Migration Act 1958 (Cth) (“the Migration Act”) (“third Tribunal decision”).
Present proceedings
On 22 September 2008, the applicant filed an application for judicial review of the third Tribunal decision in the Federal Magistrates Court (the present proceedings).
[2] SZIOF v Minister for Immigration and Citizenship [2007] FCA 1858
[3] SZIOF v Minister for Immigration & Anor [2008] HCASL 394
In the light of the Minister's response and the discussion that occurred at today's first court date hearing, I ordered an immediate show cause hearing in this matter.
The application contains two grounds. The first is that the Tribunal did not invite the applicant to a hearing. That is factually correct. Having found that it lacked jurisdiction, the Tribunal proceeded on the basis that it could not exercise any further powers. The second ground in the application is an asserted breach of s.424A of the Migration Act. Again, in my view, the application for that section would depend upon the Tribunal having jurisdiction in the matter.
I asked the applicant why she thought the decision of the Tribunal was procedurally unfair. She began referring to the second decision of the Tribunal. I explained that we were dealing with the third Tribunal decision. I explained that if the Tribunal was correct in its assessment that it lacked jurisdiction then there was nothing the Tribunal could have done other than make the decision it made.
In my view the Tribunal correctly set out the relevant law in paragraphs 6 to 8 of its reasons, which I incorporate in this judgment:
The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and start when the applicant is notified of the decision in accordance with the legislation in force at the relevant time.
Where the Tribunal has received a valid application for review of an RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, the decision is no longer an RRT-reviewable decision under s.411: SZBRB v MIAC & Anor [2007] FMCA 1093 at [30]; SZBRB v MIAC [2007] FCA 1452 at [21]; and SZBWJ & Ors v MIAC & Anor [2008] FMCA 164 at [41]. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMA [2006] FMCA 322. Even 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: MIMA v Thiyagarajah (2000) 199 CLR 343 at [30], although it may potentially be a basis on which the Minister might permit lodgement of a further Protection visa application under s.48B of the Act.
The proposition that the Tribunal cannot accept a second application for review of the same RRT-reviewable decision has been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. It may be observed 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: see SZASP v MIAC [2007] FCA 771; SZAQW v MIMA [2006] FCA 1332; SZIHQ v MIMA [2006] FMCA 496; SZIIV v MIMA [2006] FMCA 322; SZCKB v MIMA [2006] FMCA 804 and SZBCE v MIMA [2006] FMCA 1897.
That law has been referred to by this Court and the Federal Court on numerous occasions. It is now trite law.
The applicant told me that she had been assisted by a friend who advised her to follow the course that she has followed. In my view the making of the last application to the Tribunal was an abuse of that Tribunal’s process. The making of the present application to this Court, in circumstances where the decision of the Tribunal was undoubtedly correct in law, abuses this Court’s process.
The applicant asserts that she cannot return to Nepal. That is properly an issue for the Minister to consider should he be so minded. It is not an issue that the Tribunal or the Courts can deal with any further.
I will order that the application be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), on the basis that no arguable case for the relief claimed has been disclosed.
Having found that the present application is also an abuse of this Court’s process, the Court should also take steps to prevent further such applications being filed in the absence of leave. I will order that no further application by this applicant to review any migration decision relating to her protection visa application lodged on
23 September 2005be accepted for filing in this Court except by leave of a Federal Magistrate.
The applicant should also pay the Minister’s costs. An abuse of process having been found, the Minister was entitled to claim indemnity costs. The Minister has in fact claimed approximately 70 per cent of his actual costs in the sum of $1,600. The applicant doubted her capacity to pay but I am satisfied that the costs claimed have been reasonably and properly incurred. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 November 2008
0
14
3