SZLGL v Minister for Immigration
[2008] FMCA 844
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 844 |
| MIGRATION – Visa – Protection visa – RRT – application for review of decision of the Refugee Review Tribunal – where Tribunal found that it had no jurisdiction – where delegate’s decision had already been reviewed by the Tribunal – Tribunal functus officio – applicant had not applied for review of first Tribunal decision – no reviewable error. |
| Migration Act 1958 (Cth) ss.425, 426A |
| SZASP v Minister for Immigration and Citizenship [2007] FCA 771 |
| Applicant: | SZLGL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2725 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 June 2008 |
| Date of Last Submission: | 20 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $2,600.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2725 of 2007
| SZLGL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application to review a decision of the Refugee Review Tribunal which found that it did not have jurisdiction to review the delegate's decision that the Applicant had asked it to review. The reason why the Tribunal found that it did not have jurisdiction is that it has already reviewed the delegate's decision.
Whilst this is an application to deal with a second application to the Refugee Review Tribunal, it is somewhat different in its circumstances from those which the Courts see all too frequently and have been described by Moore J in SZASP v Minister for Immigration and Citizenship[1].
[1] [2007] FCA 771
Background
I will begin at the beginning. The Applicant is a citizen of the People’s Republic of China. He originally sought to review a decision of a delegate of the Minister now known as the "Minister for Immigration and Citizenship" by means of an application for a protection visa lodged on the 5th February 1999.
On the 4th March 1999, a delegate of the Minister refused the application for a visa.
First Application to the Refugee Review Tribunal
The Tribunal received an application for review of that decision at its Melbourne Registry on the 6th April 1999. A copy of the application for review can be found in the Court Book at pages 39 to 42.
The application showed that the Applicant's home address was an address in a suburb of Melbourne but that he had authorised an advisor to act for him in relation to the application. The form showed that the name of the advisor was Jie Fan whose place of business was shown as the Australian Education and Migration Service with an address of 7 Renown Street, Coburg, in the State of Victoria. A telephone number and fax number were given for the migration agent.
The Tribunal wrote to the Applicant care of the migration agent's address on the 1st July 1999. The letter was headed: "Notice under section 425A of the Migration Act 1958" and invited the Applicant to attend a hearing of the Tribunal at its office in Bourke Street, Melbourne, at 10:00am on Tuesday, 10th August 1998.
The First Tribunal’s Decision
A copy of the first Tribunal decision record can be found in the Court Book at pages 55 through to 68. The Tribunal decision was signed on the 11th August 1999 and handed down on the 3rd September in that year.
The Tribunal noted that the Applicant did not attend the hearing. The Tribunal noted that the Applicant did not contact the Tribunal to explain his failure to attend. The Tribunal considered the material that was before it and proceeded to deal with the application without taking any further steps to enable the applicant to attend.
The Tribunal made this finding:
“The applicant was put on notice by the Tribunal that it was unable to make a favourable decision on the information before it, but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”[2]
[2] See Court Book at page 68.
Second Application to the Refugee Review Tribunal
It does not appear that any application was made to the Federal Court or to any Court for judicial review of that decision of the Refugee Review Tribunal. In fact, nothing further seems to have happened until the 29th May 2007 when an application for review of the same delegate's decision was received by the Sydney office of the Refugee Review Tribunal. At that stage, the Applicant had given a home address in a suburb of Sydney.
The Tribunal wrote to the Applicant on the 13th June 2007 in a letter headed: "Invitation to Comment and Provide Further Information on Eligibility Issue(s)". The letter told the Applicant that it appeared that his application was ineligible for review on the basis of Tribunal had already completed a review of the delegate's decision.
The Applicant then forwarded a letter by facsimile on the 6th July 2007 to the Tribunal. The letter was handwritten in English by a person on behalf of the Applicant and the letter told the Tribunal that:
“The Applicant sought review of this decision by application lodged with Tribunal by April 1999 by migration agent on my behalf. I didn't sign any application form. Now I have new information and evidence to support my new claims. I would like the Tribunal member reconsider my application again.”[3]
[3] See Court Book at page 80.
The Tribunal signed its decision and handed that decision down on the 16th August 2007 finding the Tribunal did not have any jurisdiction in the matter. A copy of the Tribunal decision record can be found at pages 86 to 89 of the Court Book.
The Second Tribunal’s Decision
The Tribunal noted that the Applicant had originally applied to the Department of Immigration and Citizenship for a Protection (Class AZ) visa on the 5th February 1999 and that the Applicant had sought review of the decision. The Tribunal differently constituted had affirmed the delegate's decision on the 3rd September 1999.
The question that the Tribunal saw arising was whether it had jurisdiction to review the delegate's decision on the basis of the application lodged on the 29th May 2007. The Tribunal said:
“Where the Tribunal has received a valid application for review of a RRT-reviewable decision and carried its statutory duty to review the decision under s.414 of the Act the Tribunal is precluded from again considering the matter. 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.”[4]
[4] See Court Book at page 87.
The Tribunal referred to other authority including the decision of Moore J in the Federal Court in SZASP which was in fact a decision in respect of five matters all before the Federal Magistrates Court where a repeat application had been made to the Tribunal.
The Tribunal considered the Applicant's explanation for lodging a fresh application, which was his denial that he had signed the application for review and now had new information and evidence to support his claim but did not accept that it provided any basis for accepting the application lodged on the 29th May 2007. The Tribunal went on to say:
“An application made on behalf of an applicant with the applicant's knowledge and consent, is regarded as made by the applicant, even if he or she did not sign the form.”[5]
[5] See Court Book at page 88.
The Tribunal found that, as it had already discharged its functions under the Act to review the delegate's decision of the 4th March 1999, it no longer had jurisdiction in relation to that decision.
Application for Judicial Review
The Applicant filed an application for judicial review in this Court seeking:
· A writ of certiorari, removing the decision into this Court to be quashed.
· A writ of mandamus directing the Tribunal to reconsider and re-determine the Applicant’s protection visa according to law.
· A writ of prohibition restraining the First Respondent, his servant and agents from acting upon or giving effect to the decision.
That application was filed on the 4th September 2007. The Applicant in his application claims that the Tribunal failed to comply with s.425 and s.426A of the Migration Act and thereby committed jurisdictional error of law.
The particulars of claim are set out as follows:
“(a)The second respondent did not give any consideration as to whether the circumstances of the proceeding were such that it should rely on s.426A of the Act to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The second respondent did not give any consideration as to whether it should reschedule the applicant's appearance before it, or delay its decision on the review in order to [sic] the applicant to provide the new information and evidence to support my claim review of that decision.
(b)Regarding to other issues raised from the Tribunal's decision. The Tribunal Member rely on the applicant [sic] the previous review application and stated that it was lodged on my behalf by the migration agent. It is obviously ill-founded without any substantial evidences excepting its erroneous finding based [sic].
(c)The Tribunal make such decision of the application for review of the decision rely on the applicant filed the application outside the prescribed time period. The Tribunal didn't give me opportunity to attend the hearing.”
The Applicant accompanied his application with an affidavit in which he said:
“1. I applied to the Department of Immigration and Citizenship for a protection visa on February 1999 by the migration agent to act on my behalf in preparing application. The migration agent sought review of the decision by application lodged with the Tribunal on 6 April 1999. The application form signed by the migration agent.
2.If the Court is satisfied that there has been fraud by migration agent, I would say, where a migration agent misleads an applicant or breaches their duty to the applicant, there can be jurisdictional error.”
Submissions
The Applicant has not filed any written outline of submissions but he has attended Court.
In view of the allegations in his affidavit relating to fraud, I offered the opportunity to the Applicant to give evidence on oath or affirmation. However, the Applicant elected not to do so but made submissions from the Bar table.
The Applicant said that, in 1998, he was caught in Melbourne. It was not he who found a migration agent. He said "they", without saying who "they" are, asked him to sign. He did not know what it was. He did not know what kind of document it was. He brought this application to the Refugee Review Tribunal because he asked his friends. He claimed the Tribunal did not give him enough time to submit the documents that he had.
The Applicant complained that, when he lodged his application for judicial review, he had received advice from the lawyer on the RRT legal advice panel but that lawyer did not give him any opinion or give him any letter. He said that he did know English and he did not know the law. He wished the Court to give him permission to lodge his application again.
For the Respondent Minister, Ms Johnson submits that the Applicant is seeking to review the second Tribunal decision and that this application cannot succeed because there was no argument available to the Applicant which held any prospect of success in establishing jurisdiction that the Tribunal further consider his entitlement of a protection visa.
Ms Johnson submitted correctly that the Tribunal does not and cannot have power to conduct a further review of a delegate's decision once the Court of competent jurisdiction has quashed an earlier decision on review and directed that a review application be conducted afresh.
In oral submissions, Ms Johnson submitted that the Applicant had not lodged any application for judicial review of the first Refugee Review Tribunal decision. If he was alleging fraud by the migration agent, he should have sought judicial review of that decision rather than taking the steps that he has done. She submitted that the application before the Court did not attempt to deal with the jurisdictional issue at all and that the grounds of review asserted that the Tribunal failed to comply with ss.425 and 426A of the Act.
After hearing from Ms Johnson, solicitor for the Minister, the Applicant said in reply that he just wished to be given a second opportunity to allow his application to be reviewed.
Conclusion
The evidence does not establish any fraud by a migration agent in respect of the first application to the Refugee Review Tribunal for review. Even if there was such evidence, the appropriate course to have taken would be to have sought judicial review of the first decision of the Refugee Review Tribunal. In his submissions to the Court, the Applicant conceded that he had signed the original application for review although he denied that he was aware of the contents of it. I have had the opportunity of comparing signature on the photocopy of the Applicant's declaration on the original application to the Refugee Review Tribunal which appears at page 42 of the Court Book with the Applicant's signature on his affidavit. They certainly appear to my eyes to be remarkably similar.
It is the situation, however, that, if an application is made to the Refugee Review Tribunal on behalf of an applicant, it is still a valid application whether or not it was signed by the applicant. Indeed, the Applicant conceded in his letter to be Tribunal of the 6th July 2007 that the application was lodged with the Tribunal by a migration agent on his behalf. Accordingly, whilst this Court is not conducting a review of the original decision of the Refugee Review Tribunal, there does not appear anything that I can see that would indicate that the original decision was not a valid review of a valid application.
The Tribunal is functus officio and, when the application was made to the Tribunal for a second review of the delegate's decision, the Tribunal had no jurisdiction to do so. It had already reviewed the decision and it had no power and has no power to review the delegate's decision twice unless there has been an order by a Court quashing or setting aside the original decision and making an order in the nature of mandamus directing the Tribunal to determine the application for review according to law. It is quite clear that that has not been done. There is no evidence of any application for judicial review in respect of the first Tribunal decision.
Accordingly, the Tribunal was functus officio and had no jurisdiction to conduct a second review of the decision of the delegate. It follows then that no jurisdictional error has been established and the decision of the Refugee Review Tribunal finding that it had no jurisdiction is a privative clause decision. The application will be dismissed.
Costs
There is an application for costs on behalf of the First Respondent Minister in the sum of $2,600.00. The Applicant has been unsuccessful in his claim and this is a proper matter for a costs order. The Applicant says that he has no funds to meet that order and the amount sought by the Minister is $2,600.00. The Applicant says that he has not worked and does not have permission to work. He says that he is supported by friends who occasionally give him money. That may well be so but it is not a reason not to make an order for costs in favour of a successful party. Whether any order for costs can be successfully enforced is, I think, another matter.
I am satisfied that the amount of $2,600.00 is an appropriate figure in the circumstances. I will allow three months to pay the costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 June 2008
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