SZMBM v Minister for Immigration

[2008] FMCA 529

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 529

MIGRATION – Visa – Protection (Class XA) visa – jurisdiction – where Tribunal had no jurisdiction – where applicant applied for review of a decision before it was handed down.

Migration Act 1958 (Cth)
Federal Magistrate Court Rules 2001, r 44.12

Applicant: SZMBM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 664 of 2008

Judgment of: Scarlett FM

Hearing date: 14 April 2008

Date of Last Submission: 14 April 2008

Delivered at: Sydney

Delivered on: 14 April 2008

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondents costs fixed in the sum of $450.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 664 of 2008

SZMBM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant has applied to the Court to review a decision of the Refugee Review Tribunal.  The Tribunal signed its decision on

   
   15 August 2007

   .  The Tribunal found it did not have jurisdiction.  The Tribunal handed down its decision down on 16 August 2007. 

2. The reason why the Tribunal found that it did not have jurisdiction was because there was no decision to review.  At the time the applicant applied to the Refugee Review Tribunal the delegate of the Minister had not made any decision about his application for a visa.  The decision was still pending.  The applicant, however, pessimistically took the view that his application was going to be refused and applied to have it reviewed anyway. 

3. The applicant applied for a protection visa on 1 May 2007. On 19 June 2007 the applicant applied to the Refugee Review Tribunal for a review. He did not provide a copy of the delegate's decision to the Tribunal because, as I said, there was not one. The decision had not been made. The decision was not made until 27 July 2007. On that date the delegate refused the application for a visa. However, no application was made to the Tribunal for that decision to be reviewed. There is no provision that I am aware of in the Migration Act that gives the Refugee Review Tribunal jurisdiction to review decisions that may be made in the future.

4. The applicant claims in his affidavit that the decision by the Refugee Review Tribunal denied natural justice to the applicant and that the Refugee Review Tribunal did not follow due procedure of law.  That is of course just wrong.  There is no denial of natural justice and the Tribunal did follow due procedure.  It could not conduct a review of a decision that had not been made.  The fact that the decision was subsequently made is irrelevant because the applicant never brought that decision to the Tribunal for a review.  It would have been open to him to do so, but that was not the case. 

5. Clearly, this is a matter that should be dismissed. It is noteworthy that this is but one of a number of matters that have been brought to the Court recently where the applicants all live at the same address in the New South Wales country town of Hillston, which I note is uniformly spelt incorrectly, and that they have all given a post office box in the Sydney suburb of Kogarah as an address for receiving mail. It would be hard to think of a less convenient address, bearing in mind that Hillston is many hundreds of kilometres from the Kogarah post office. Quite clearly, this matter is a scam. The application has been brought with the assistance of another person whose name is not disclosed and it is a clear misuse of the procedures under the Migration Act.

6. In this case the applicant or his advisers have got it badly wrong because they got their timing wrong.  They assumed that the applicant's application for a visa would be refused and applied for a review of it anyway before the decision had been made.  In legal terms it is the equivalent of scoring of an own goal.  There is no jurisdictional error.  The applicant has no case.  The application has certainly not raised an arguable case for relief under r.44.12(1)(a) and the application will be dismissed under the provisions of r.44.12(1)(a) and it will be dismissed with costs. 

7. This is an appropriate matter for costs.  The applicant is to pay the first respondent's costs fixed in the sum of $450.   

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  23 April 2008