SZJSV v Minister for Immigration

[2008] FMCA 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 561

MIGRATION – Refugee Review Tribunal – Practice & Procedure – whether the Refugee Review Tribunal had jurisdiction to consider applicants’ review application – prior judicial proceedings dismissed – whether proceeding is an abuse of process – whether proceeding has no arguable prospect of success.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414; 474

SZJSV & Anor v Minister for Immigration & Anor [2007] FMCA 355
SZJSV & Anor v Minister for Immigration & Anor  [2007] FCA 913
SZJSV & Anor v Minister for Immigration & Anor [2008] HCA TRANS 029
Jayasinghe v Minister for Immigration and Ethnic Affairs (2001) 109 FCR 18
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
SZCFB v Minister for Immigration and Citizenship [2008] FCA 527

First Applicant: SZJSV

Second Applicant: SZJSW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 752 of 2008

Judgment of: Emmett FM

Hearing date: 1 May 2008

Date of last submission: 1 May 2008

Delivered at: Sydney

Delivered on: 1 May 2008

REPRESENTATION

Applicant appeared in person with the assistance of a Gujarati interpreter

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 752 of 2008

SZJSV

First Applicant

SZJSW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the First Respondent that the applicants’ proceeding for judicial review of a decision of the Refugee Review Tribunal dated 27 February 2008 be dismissed under Rule 44.05 of the Federal Magistrates Court Rules 2001 (Cth), on the basis that the applicants’ proceeding is an abuse of process or has no reasonable prospects of success.

2. The First Respondent read the affidavit of Nicola Johnson, sworn 8 April 2008.  Ms Johnson’s affidavit annexes a chronology of the applicants’ litigation in respect of their application for protection visas. 

3. Relevantly, the applicants’ arrived in Australia on 3 May 2006. 

4. On 26 May 2006, the applicants’ lodged applications for protection visas which were refused by a delegate of the First Respondent (“the Delegate”) on 21 July 2006. 

5. On 12 August 2006 the applicants lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal.  On 7 November 2006 the Refugee Review Tribunal, previously constituted, (“the First Refugee Review Tribunal”) affirmed the Delegate’s decision. 

6. On 22 November 2006, the applicants filed an application for judicial review of the First Refugee Review Tribunal decision in the Federal Magistrates Court. On 7 March 2007, Scarlett FM dismissed the application on the basis that the First Refugee Review Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision pursuant to s.474 of the Migration Act 1958 (Cth) (“the Act”) (SZJSV & Anor v Minister for Immigration & Anor [2007] FMCA 355).

7. On 20 March 2007, the applicants filed a Notice of Appeal from the decision of Scarlett FM.  On 15 May 2007 that appeal was dismissed (SZJSV & Anor v Minister for Immigration & Anor [2007] FCA 913).

8. On 7 June 2007, the applicants filed an application for special leave in the High Court of Australia.  On 6 February 2008 that application was dismissed (SZJSV & Anor v Minister for Immigration & Anor [2008] HCA TRANS 029).

9. On 14 February 2008, the applicants lodged a second application for review of the Delegate’s decision.  On 27 February 2008, the Refugee Review Tribunal (“the Tribunal”) found that it had already discharged its functions under s.414 of the Act to review the Delegate’s decision on the basis that the Refugee Review Tribunal no longer had jurisdiction to further consider the applicants’ review application.

10. On 18 March 2008 the applicants filed the application in this Court, the subject of this hearing, relying on the following grounds:

    “1. The Second respondent denied the applicant natural justice…

    Particulars:

    The second respondent should have put to the applicant country information which was adverse affected the applicant’s case, because it contained certain informations that the(sic) was adversely affected the applicants decision for the grant of protection visa.

    The second respondent failed to comply with a mandatory provision of the Migration Act 1958 (Cth) (section 425), in failing to invite the applicant to attend, give evidence and present arguments in relation to issues arising out of the decision under review or allow applicant to make further submissions in response of the adverse informations. And failed to make comments on the informations under section 424A(1) of the migration Act and common law procedural fairness. [Keio Vs West, Ex. Mia, SAAP, Vs MIMA principles].

    The Seconf(sic) respondent accepted the repeat application undersection 416 of the Migration Act and denied the applicants hearing rights and therefore committed jurisdictional error and denial of Natural Justice.”

11. The Tribunal concluded that as an earlier decision of the Refugee Review Tribunal had already affirmed the decision of the Delegate to refuse the applicants’ protection visas, it was functus officio because it no longer had jurisdiction.  The Tribunal has no jurisdiction to review the Delegate’s decision twice (Jayasinghe v Minister for Immigration and Ethnic Affairs (2001) 109 FCR 18 at 28 [35] per Merkel J).

12. The Applicant was unrepresented before this Court, although had the assistance of an interpreter.  The Applicant submitted that the Tribunal accepted his second review application and therefore should have invited him to come to a hearing. 

13. However, the Tribunal had no power to consider a further application to review the decision of the Delegate in circumstances where that decision had already been reviewed and affirmed by the First Refugee Review Tribunal decision; and where that First Refugee Review Tribunal decision has been found to be without error and a privative clause decision (Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30] ; SZCFB v Minister for Immigration and Citizenship [2008] FCA 527 at [12]-[13]).

14. The initiating application filed by the applicants in this Court seeking judicial review does not raise the issue of jurisdiction of the Tribunal.  The jurisdictional issue was determinative in the First Refugee Review Tribunal’s decision. 

15. In the circumstances, the applicants’ proceeding before this Court has no arguable prospect of success.  Further, I accept the submission of the First Respondent that “The litigation history of the applicants and the unmeritorious nature of the application to the Tribunal and to this Court are factors which demonstrate that this proceeding is an abuse of process.” 

16. Accordingly, the proceeding before this Court is dismissed with costs. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  E. Maconachie

Date:  1 May 2008