SZIYN v Minister for Immigration
[2008] FMCA 1428
•30 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1428 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal functus officio – proceedings had no reasonable prospects of success – merits review unavailable in judicial review proceedings. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 |
| Applicant: | SZIYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2389 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 September 2008 |
| Date of Last Submission: | 30 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2389 of 2008
| SZIYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 19 August 2008. The applicant had claimed that he feared persecution in Bangladesh by reason of his politics. The Tribunal concluded that it did not have jurisdiction to entertain the applicant’s application for review. The matter is before the Court today for its first court date and the first respondent has applied instanter for summary dismissal of the proceedings under r.13.10 of the Federal Magistrates Court Rules 2001.
In support of that application, the Minister has relied on exhibits 1 and 2. The first exhibit is a bundle of documents setting out the history of the applicant’s pursuit of a protection visa, including his visa application form, the decision of the Minister’s delegate on that application, subsequent applications for review, determinations on review by the Refugee Review Tribunal and proceedings in this Court, the Federal Court and the High Court. The second exhibit is a copy of a letter from the Minister’s solicitors to the applicant dated 26 September 2008 which is expressed to have been sent by express post, amongst other things notifying him of today’s court date and foreshadowing the application which has been made today.
Two procedural issues need to be addressed at this point. The first is that no formal application in a case has been filed and the application for dismissal has been made orally today. To the extent that it is necessary, I dispense with that much of the rules as would require the filing of an application in a case.
As to the notification to the applicant of the Minister’s intention to seek the orders that he seeks today, the notice is shorter than would normally be given or would normally be acceptable. However, given the nature of this case I am of the view that no amount of notice would have had any effect on the outcome on these proceedings as, in my view, the Minister’s application must succeed and the application must be dismissed.
In his application the applicant specifies the following grounds.
(1)The Tribunal failed to act according to migration law and regulation.
(2)The Tribunal did not apply the correct laws when consider my case.
(3) The Tribunal misinterpreted the migration laws.
(4)The Tribunal failed to exercise its jurisdiction under the Migration Act.
The first respondent submits that the applicant has no reasonable prospects of success. The test in r.13.10 when it speaks of summary dismissal by reason that a party has no reasonable prospects of success sets the bar for the party making such an application rather lower than was the case before that rule was introduced. Historically, the authorities required that dismissal of this sort would not be ordered except where the lack of a cause of action was clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim was groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or where there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 at 575-576 per Gaudron, McHugh, Gummow and Hayne JJ).
The relevant authorities were considered by me recently in Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104, and it is with that discussion in mind that I proceed to consider the application which is currently before me.
The outcome of the Minister’s application in a case and consequently the applicant’s application to the Court is unavoidable given the chronology of the applicant’s protection visa proceedings, that being as follows:
a)on 9 November 2005, the Minister’s delegate refused the applicant’s application for a protection visa;
b)on 26 May 2006, the Tribunal relevantly affirmed the delegate’s decision;
c)on 3 October 2007, the applicant’s application to this Court for review of the Tribunal’s decision was dismissed;
d)on 13 February 2008, the applicant’s appeal to the Federal Court from this Court’s decision of 3 October 2007 was dismissed;
e)on 16 July 2008, the applicant’s application to the High Court for special leave to appeal from the decision of the Federal Court was dismissed;
f)on 19 August 2008, the Tribunal signed the decision which is the subject of these proceedings in which it concluded it had no jurisdiction to consider the applicant’s application for review of the delegate’s decision of 9 November 2005 because it was functus officio by reason of its decision of 21 December 2006; and
g)these proceedings were commenced on 15 September 2008.
In this case, it is clear that the applicant’s action is certain to fail. His claim for judicial review on the basis of jurisdictional error cannot succeed because the Tribunal was correct to conclude that it did not have jurisdiction: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18. Although the applicant has made oral submissions today about the difficulties that he might face were he to return to Bangladesh, the Court cannot in judicial review proceedings entertain an appeal based on the merits of an application to the Tribunal. It may only consider whether the Tribunal’s decision is affected by jurisdictional error.
In the circumstances of this case I am satisfied that there was no jurisdictional error committed by the Tribunal with the result that the applicant’s application has no reasonable prospects of success and the proceedings must be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 October 2008
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