SZLCU v Minister for Immigration
[2007] FMCA 1827
•9 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1827 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal had no jurisdiction to conduct a second review of the delegate’s decision – Tribunal functus officio – no arguable cause of action – proceedings an abuse of the process of the Court. |
| Migration Act 1958, ss.416, 424A, 425 Federal Magistrates Court Rules 2001, rr.13.10, 44.12 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 SZASP v Minister for Immigration & Citizenship (2007) FCA 771 |
| First Applicant: | SZLCU |
| Second Applicant: | SZLCV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2325 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 October 2007 |
| Date of last submission: | 9 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2007 |
REPRESENTATION
The Applicants appeared in person.
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Pursuant to r.13.10 the application be dismissed.
The applicants pay the first respondent's costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2325 of 2007
| SZLCU |
First Applicant
| SZLCV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In these proceedings the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 3 July 2007. Although the application was brought by the first and second applicants, the second applicant is the wife of the first applicant and he appears on behalf of them both today, therefore for convenience I will refer to the first and second applicant simply as “the applicant” in these reasons.
The Tribunal decision in respect of which judicial review is sought in these proceedings was that it did not have jurisdiction to entertain the applicant's application for review. The matter is before the Court today on the applicant's application that the respondent show cause why relief should not be granted to him. In the application the applicant raises two grounds of review, namely that:
a)the Tribunal should have put to the applicant country information which was adverse and in this regard breaches of ss.424A(1) and 425 of the Migration Act 1958 (“Act”) are particularised; and
b)the second respondent accepted the repeat application under s.416 of the Act and denied the applicant's hearing rights and therefore committed jurisdictional error and denial of natural justice.
The first respondent submits that the pleaded grounds lack merit but in any event submits that the proceedings are an abuse of process and that no reasonable cause of action is disclosed.
An order to show cause will not be made if the applicant does not have an arguable case. The authorities show that an application should not be dismissed under r.44.12 of the Rules of Court for want of an arguable case unless the lack of a cause of action is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome. Under r.13.10, the proceedings may also be dismissed if they have no reasonable prospects of success, are frivolous or vexatious or an abuse of the process of the Court.
In understanding the issues before the Court today, it is important to have in mind the chronology of events associated with the applicant's pursuit of a protection visa. That chronology can be derived from the affidavit of Alissa Maree Crittenden, sworn 4 September 2007, together with exhibit “A” which was exhibited to Ms Crittenden's affidavit and exhibit “B” which is the Court Book (“CB”). Relevantly the chronology is this:
a)on 21 November 2002 the delegate refused the applicant's application for a protection visa;
b)on 14 October 2003 the Tribunal affirmed that decision of the delegate;
c)on 12 August 2005 the applicant's application for judicial review brought in this Court was dismissed by Raphael FM;
d)on 22 November 2005 the applicant’s appeal from that decision to the Federal Court was dismissed by Madgwick J;
e)on 13 June 2007 a Full Bench of the High Court dismissed the applicant's appeal from the decision of Madgwick J;
f)
on 25 June 2007, judging by the received stamp appearing at
CB 1, the applicant filed his most recent application for review with the Tribunal;
g)on 3 July 2007 the Tribunal concluded that it had no jurisdiction to entertain the applicant's review application; and
h)on 27 July 2007 these proceedings were commenced by the filing of the application already referred to.
The basis of the Tribunal's decision signed on 3 July 2007 was that it had no jurisdiction to review the delegate's decision of the sittings of 21 November 2002. In reaching that conclusion the Tribunal made reference to the fact that it had already, in a differently constituted form, affirmed the delegate's decision on 14 October 2003 and then set out the progress of the applicant's judicial review application and subsequent appeal.
In relation to the Tribunal's conclusion that it was functus officio, it is important to keep in mind that the delegate's decision was dated 21 November 2002 and the Tribunal gave its original decision on 14 October 2003. There has been no new decision of the delegate. The Tribunal was correct to conclude that once it has undertaken a review of a delegate's decision the Tribunal does not have power to conduct a second review of it: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18.
As Moore J said in SZASP v Minister for Immigration & Citizenship (2007) FCA 771 at [4]:
It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. The Tribunal's conclusion it no longer had jurisdiction to review the delegate's decision, as it had already discharged its functions under the Act to review the delegate's decision, is correct.
Because I find that the Tribunal's conclusion that it had no jurisdiction to entertain the applicant's review application was correct there is no need for me to give consideration to the grounds of review raised by the applicant in the application filed in these proceedings. Because the Tribunal was correct in concluding that it had no jurisdiction to entertain the further review application, it is clear that the applicant's action is certain to fail.
Regardless of whether the applicant's case is arguable or not, there remains the issue of r.13.10 and whether the proceedings are, as submitted by the respondent, an abuse of the process of the Court. In SZASP's case, in which Moore J determined five migration cases, one of those proceedings was the one already referred to where the applicant had sought from the Tribunal a further review of the delegate's decision, it having already undertaken one review of that decision. At [22] his Honour stated that each of the proceedings before him was an abuse of the process of the Court including the proceeding where the applicant was seeking a second Tribunal review. So it is here.
The bringing of these proceedings seeking judicial review of a Tribunal decision which was manifestly correct, because the Tribunal had previously decided that it would affirm the earlier decision of the delegate, and where the applicant has brought proceedings in this Court, the Federal Court, and has enjoyed the comparatively rare benefit of an appeal to the High Court, means that these proceedings are an abuse of the process of this Court.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 November 2007
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