SZMRE v Minister for Immigration
[2008] FMCA 1281
•10 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1281 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case – abuse of process – repeated visa, review and court applications. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.48B, 65, 411, 412, 414 Migration Regulations 1994 (Cth) |
| Jayasinghe v Minister for Immigration (1997) 76 FCR 301 Minister for Immigration v Thiyagarajah (2000) 1 CLR 343 SZAQW v Minister for Immigration [2006] 1332 SZASP v Minister for Immigration [2007] FCA 771 SZBCE v Minister for Immigration [2006] FMCA 1897 SZBRB v Minister for Immigration & Anor [2007] FMCA 1093 SZBRB v Minister for Immigration [2007] FCA 1452 SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 SZCKB v Minister for Immigration [200] FMCA 804 SZIHQ v Minister for Immigration [2006] FMCA 496 SZIIV v Minister for Immigration [2006] FMCA 322 |
| First Applicant: | SZMRE |
| Second Applicant: | SZMRF |
| Third Applicant: | SZMRG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2180 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 10 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2008 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
INTERLOCUTORY ORDERS
The Court directs that there be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by these applicants to review any migration decision relating to the applicants’ protection visa application made on 29 August 2002, their educational temporary (class TH) visa application made on 4 May 2003 or their temporary business entry visa application made on 21 November 2000 is to be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2180 of 2008
| SZMRE |
First Applicant
SZMRF
Second Applicant
SZMRG
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 21 August 2008 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal found that it did not have any jurisdiction. The decision was made on 11 July 2008. The applicant asserts notification of the decision on 15 August 2008. I accept that the application to the Court was made within time.
There are three grounds in the application. The first is that the applicant did not receive an invitation from the Tribunal to attend a hearing. The second is that not all the information the applicant submitted to the Department was properly considered and the third is that the applicant lost a fair chance of presenting her case before the Tribunal.
The application is supported by a short affidavit annexing a copy of the Tribunal decision. In the affidavit, the applicant asserts that she only found out recently there was a mistake in the Tribunal decision. She says that the Tribunal did not request any information about her reasons for lodging a second application.
The Tribunal in its decision stated that the first applicant (“the applicant”) and, apparently two children, applied to the Minister's Department for protection visas on 29 August 2002. The Minister's delegate refused that application on 24 September 2002. The applicant sought review of that decision before the Tribunal on 29 October 2002. The Tribunal, differently constituted, affirmed the delegate's decision on 4 April 2003 (Tribunal reference: V0315138). The applicants lodged a further application for a review of the delegate's decision on 26 June 2008. The applicant confirmed from the bar table the accuracy of those factual statements by the Tribunal.
There is no record of any application for judicial review of the first Tribunal decision. The applicant confirmed from the bar table that there had been no challenge to that first Tribunal decision. She confirmed that following the first Tribunal decision she had applied for a different visa.
I have before me this Court's file, SYG324 of 2008 relating to an earlier proceeding in this Court involving the applicant. On that file is an affidavit by Richard John Baird, solicitor for the Minister, prepared for the purposes of that proceeding. His affidavit records that on 4 May 2003, the applicant applied to the Minister's Department for educational visas. On 3 May 2003, the Minister's delegate refused nomination approval and on the same day refused the applicants’ visa application. The applicants applied to the Migration Review Tribunal (“the MRT”) for review of the delegate's decision on 2 July 2003. The MRT affirmed the delegate's decision on 30 July 2004. The applicants applied to this Court for review of that decision of the MRT on 13 November 2006. That application was dismissed by Nicholls FM on 23 March 2007 when the applicants failed to appear (SYG3308 of 2006).
The court file records that the applicants lodged a further application in this Court to review another decision of the MRT on 13 February 2008. That was a decision handed down on 29 July 2002 affirming a decision of a delegate of the Minister not to grant the applicants temporary business entry visas. They had applied for those visas on 21 November 2000. That matter came before me on 10 March 2008. I listed the matter for a show cause hearing on 18 April 2008. The applicants failed to attend that hearing and I dismissed the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In view of the circumstances, I directed that there should be an immediate show cause hearing today.
The present application is doomed to fail. The Tribunal correctly stated the legal position in paragraphs 5 to 7 of its decision:
The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and start when the applicant is notified of the decision in accordance with the legislation in force at the relevant time.
Where the Tribunal has received a valid application for review of an 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 & Anor [2007] FMCA 1093 at [30]; SZBRB v MIAC [2007] FCA 1452 at [21]; and SZBWJ & Ors v MIAC & Anor [2008] FMCA 164 at [41]. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZIIV v MIMIA [2006] FMCA 322. 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) 1 CLR 343 at [30], although it may potentially be a basis on which the Minister might permit lodgement of a further Protection visa application under s.48B of the Act.
The proposition that the Tribunal cannot accept a second application for review of the same RRT-reviewable decision has been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. It may be observed that many of these applications have been found to be an abuse of process, instituted for the purpose of prolonging the applicant’s stay in Australia: see SZASP v MIAC [2007] FCA 771; SZAQW v MIMA [2006] 1332; SZIHQ v MIMA [2006] FMCA 496; SZIIV v MIMA [2006] FMCA 322; SZCKB v MIMA [200] FMCA 804 and SZBCE v MIMA [2006] FMCA 1897.
As the applicants made no challenge to the first decision of the Tribunal, the Tribunal should be taken to have validly exercised its powers on 4 April 2003. It followed that the Tribunal had no jurisdiction to entertain a second application for review.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The making of a second application to the Tribunal was an abuse of that Tribunal's process. The applicant has demonstrated a predilection for making repeated applications either to this Court or to the Tribunal and the MRT. The present application is an abuse of this Court's process. The Minister should not continue to be vexed by applications of this nature. I will order that no further application by these applicants to review any migration decision relating to the applicants’ protection visa application made on 29 August 2002, their educational temporary (class TH) visa application made on 4 May 2003 or their temporary business entry visa application made on 21 November 2000 is to be accepted for filing in this Court, except by leave of a Federal Magistrate.
The Minister seeks an order that the first applicant pay the Minister's costs and disbursements on this application on an indemnity basis fixed in the sum of $500. Scale costs would be $1,000.
The applicant indicated an understanding of the costs position but did not make any submissions. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2008
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