SZJQY v Minister for Immigration

[2007] FMCA 713

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQY & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 713

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal functus officio – application dismissed.

Migration Act 1958, ss.65,66
Federal Magistrates Court Rules 2001, r.44.12

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

First Applicant: SZJQY

Second Applicant: SZJQZ

Third Applicant: SZJRA

Fourth Applicant: SZJRB

Fifth Applicant: SZJRC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3298 of 2006

Judgment of: Turner FM

Hearing date: 12 April 2007

Date of last submission: 12 April 2007

Delivered at: Sydney

Delivered on: 12 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr J Pinder of DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12(1)(a).

2. The applicant is to pay the costs of the first respondent fixed in the amount of $2,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3298 of 2006

SZJQY

First Applicant

SZJQZ

Second Applicant

SZJRA

Third Applicant

SZJRB

Fourth Applicant

SZJRC

Fifth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a proceeding under Rule 44.12 of the Federal Magistrates Court Rules 2001 for an order to show cause. Under Rule 44.12(1) it is for the applicant to satisfy the Court that the application raises an arguable case.

2. The applicant husband (the “applicant”) lodged his first application on 2 September 2002 for review of the delegate’s decision of 7 August 2002 not to grant protection visas to the five applicants covered by this matter.

3. The Department notified the applicant of an incorrect period in which to lodge an application for review of the decision of the delegate. Notwithstanding that notification, the applicant lodged his application for review within the correct period. The Tribunal then considered the application for review, and on 17 June 2003 affirmed the decision of the delegate not to grant protection visas.

4. The applicant then lodged a second application with the Refugee Review Tribunal (“the Tribunal”) dated 8 September 2006 to review the same decision of the delegate of the Minister (CB 104-7). By decision signed on 27 October 2006 (CB 115), the Tribunal decided that there was no legal basis for the Tribunal to accept a second review application, or to reconsider the delegate’s decision. In support of that conclusion the Tribunal referred to the decisions in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30] and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7]. The Tribunal concluded that:

   As the Tribunal has already discharged its functions under the Act to review the delegates decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.

5. The Court brought to the applicant’s attention the passage immediately above, and invited the applicant to make submissions about it. The Court notes that the applicant did not have a copy of the green book in Court, however, the Court is satisfied that a copy was sent to the applicant, as well as a copy of the decision of the Tribunal (see letter dated 27 October 2006: CB 114). The applicant stated in Court that he is aware of the decision of the Tribunal and does have a copy of it.

6. The applicant claims that the Tribunal failed to comply with s.65 of the Migration Act, as it did not state the correct statutory time limit for seeking a review, and that therefore the decision by the Tribunal cannot be taken as a decision delivered to him. It appears as though the applicant intended to refer to s.66. The failure to notify the applicant of the correct time limit did not affect the applicant’s ability to file his application within the prescribed time limit. It was a valid application and was considered by the Tribunal. The applicant was, therefore, not prejudiced by the error in that letter. Therefore a failure to specify correctly the time limit for review did not affect the validity of the decision. The decision is valid and the Tribunal was functus officio after it handed down its first decision on 17 June 2003.

7. The applicant complains that the decision of the delegate was not correct. This application is not for review of that decision and the ground alleged has no relevance in this review.

8. The Court finds no error of law in the Tribunal’s decision.

9. The Court is not satisfied that the application has raised an arguable case for the relief claimed and dismisses the application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date:11 May 2007