SZMIG v Minister for Immigration
[2008] FMCA 1343
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1343 |
| MIGRATION – Review of RRT decision – second application to Tribunal for review of decision of delegate – where Tribunal decided it was unable to review the decision – whether Tribunal required to invite the applicant to a hearing – doctrine of functus officio. |
| Migration Act 1958, ss.48B, 412, 416, 424A, 425 |
| First Applicant: | SZMIG |
| Second Applicant: | SZMIH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1360 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 September 2008 |
| Date of Last Submission: | 4 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $1500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1360 of 2008
| SZMIG |
First Applicant
| SZMIH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me an application by the first respondent Minister for me to strike out an application filed in this court on 28 May 2008. The application sought a review of the decision of the Refugee Review Tribunal made on 15 May 2008. That decision was that the Tribunal was unable to review a refusal by a delegate not to grant the applicant a protection visa on 9 September 2006. The grounds upon which the Tribunal came to this conclusion are found at paragraph six of its reasons:
“Where the Tribunal has received a valid application for review of a RRT reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, the decision is no longer an RRT reviewable decision under s.411: SZBRB v MIAC (2007) FCA 1452 at [21]; and other authorities cited. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and another decision. Even if circumstances in an applicant’s country have changed, this does not provide a basis for the Tribunal to accept a second review application, or to reconsider the delegate’s decision: see MIMA v Thiyagarajah (2000) 199 CLR 343 at [30] although it may potentially be a basis on which the Minister might permit the lodgement of a further Protection visa application under s.48B of the Act.”
The applicant had previously sought review of the decision of the delegate from the Refugee Review Tribunal which affirmed the decision on 7 February 2007. The applicant, as was his right, sought review of the Tribunal’s decision from this court and, on appeal, from the Federal Court and then sought leave from the High Court to appeal the decision of the Federal Court. Copies of all the decisions have been helpfully provided in the affidavit of Ms Kelso affirmed on 25 June 2008.
In the application filed on 28 May 2008 in this court the applicant argues that the Tribunal denied him natural justice saying that it should have put some country information to him, that it failed to invite him to attend and give evidence and present arguments pursuant to s.425 of the Migration Act 1958 (the “Act”) and failed to make comments upon information under s.424A(1) of the Act. He said that the second respondent accepted the repeat application under s.416 and denied the applicant hearing rights.
The arguments put by the applicant raise the interesting question of whether the Tribunal is required to invite an applicant to a hearing when it proposes to dismiss the application for review on jurisdictional grounds. I have never seen such an invitation issued. To my mind s.425 would only come into play if a valid application is made under s.412. It seems to me that there are two reasons why the application made by this applicant was not valid, the first being that it was out of time (see s.412(1)(b)) and the second, that it was an application that had already been reviewed and the Tribunal was therefore functus officio: see Jayasinghe v Minister for Immigration (1997) 145 ALR 532 at 540 per Goldberg J and also SZHMM v Minister for Immigration [2008] FMCA 343 at [13] per Barnes FM; SZHOK v Minister for Immigration [2008] FMCA 1104 at [8] per Barnes FM, and in those circumstances the obligation to invite the applicant to attend a hearing and present evidence which relates solely to his claim to be a person to whom Australia owes protection obligations there is not enlivened.
The other grounds of the application are irrelevant to the decision under review.
The applicant appeared before me today. He told me that his claims were true and he wished another opportunity to persuade the Tribunal of them. The only way in which I believe the applicant can have such an opportunity is to receive permission from the Minister pursuant to s.48B. The method he has chosen is not appropriate.
I dismiss the application. I order the applicant to pay the First Respondent’s costs assessed in the sum of $1,500.00.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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