SZUUU v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2020] FCCA 3354
•8 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
SZUUU v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3354
File number(s): SYG 2096 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 8 December 2020 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – finding by the Tribunal that it lacked jurisdiction as decision of the Minister’s delegate had been reviewed previously – summary dismissal of show cause application – no prospect of success. Legislation: Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth) s 36
Migration Regulations 1994 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
Cases cited: SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZUUU & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 2134
SZUUU v Minister for Immigration and Border Protection [2015] FCA 1331
SZUUU & Anor v Minister for Immigration and Border Protection & Anor [2016] HCASL 15
Number of paragraphs: 21 Date of hearing: 8 December 2020 Place: Sydney Applicant in person
Solicitor for the Respondents: Ms S Balakrishnan of Australian Government Solicitor
Table of Corrections 15 December 2020 The representation of the respondents on the cover sheet has been corrected. ORDERS
SYG 2096 of 2020 BETWEEN: SZUUU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
8 DECEMBER 2020
INTERLOCUTORY ORDERS:
1.Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth), the application filed on 7 September 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the first respondent’s Application in a Case filed on 25 September 2020 in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER
I have before me an Application in a Case filed on 25 September 2020. In that application the Minister seeks orders under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) for the summary dismissal of a judicial review application filed on 7 September 2020. The Application in a Case is supported by the affidavit of the Minister’s solicitor, Sheetal Balakrishnan, made on 22 September 2020.
In general terms, the background is conveniently set out in the Minister’s outline of submissions filed on 2 November 2020, which I adopt.
The applicant is a citizen of India who arrived in Australia in February 2013 on a tourist visa, and applied for a protection (Class XA) visa in May 2013. On 28 November 2013 a delegate of the Minister (delegate) refused to grant the protection visa.
The applicant applied to the then Refugee Review Tribunal (RRT) on 20 December 2013 for merits review of the delegate's decision. The Tribunal affirmed the decision of the delegate on 3 July 2014 (the RRT decision).
On 1 July 2015 the RRT merged with the Administrative Appeals Tribunal (Tribunal).
The applicant commenced judicial review proceedings and was unsuccessful in challenging the previous Tribunal decision at each stage: in seeking judicial review in the Federal Circuit Court, in his appeal to the Federal Court and in his application to the High Court of Australia for special leave to appeal.[1]
[1] SZUUU & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 2134; SZUUU v Minister for Immigration and Border Protection [2015] FCA 1331; SZUUU & Anor v Minister for Immigration and Border Protection & Anor [2016] HCASL 15
On 18 May 2020 the applicant made a further application to the Tribunal seeking merits review of the same decision of the delegate, made on 28 November 2013, which had already been reviewed by the RRT, and was the subject of the RRT decision.
On 3 August 2020 the Tribunal found that it had no jurisdiction to conduct a further review of the same delegate's decision that had already been reviewed.
The simple circumstances of this matter are that the applicant sought before the Tribunal to have merits review for a second time on a decision of a delegate of the Minister that had been previously reviewed.
It is beyond argument that a delegate’s decision ceases to be a reviewable decision once a valid review has been completed. In this case, the review undertaken in 2014 is unquestionably a valid review having regard to the unsuccessful appeals in this Court, the Federal Court and on special leave to the High Court. It is undoubtedly correct that the present Tribunal found that it had no jurisdiction. It necessarily follows that the judicial review application before the Court is doomed to fail. I agree with the Minister’s submissions on this point and adopt them.
Jurisdiction of the Tribunal
The Tribunal was correct in concluding that that it lacked jurisdiction to conduct a further review of the delegate's decision of 28 November 2013, for several reasons.
First, subitem 15AD(1) of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) states that a person may not apply to the Tribunal for review of a decision on or after the commencement date (1 June 2015), if the person made an application or purported application to a discontinued Tribunal for review of a decision before the commencement date. The definition of “discontinued Tribunal” includes the RRT. In the present case, the applicant made an application to the RRT which was heard (and fully determined) on 3 July 2014 (ie, the date of the RRT decision). He is thus not permitted to make another application to the Tribunal for review of the same decision.
Secondly, there is authority confirming that there is no jurisdiction to conduct a second merits review of a delegate's decision in relation to an application for a protection visa, in circumstances where the statutory duty to review that decision has already been discharged.[2]
[2] SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [4], citing earlier cases
Thirdly, the applicant's second application to the Tribunal was lodged on 18 May 2020, approximately six and a half years after the applicant was notified of the delegate's decision made on 28 November 2013. The application to the Tribunal was therefore lodged well out of time (see regulation 4.31 of the Migration Regulations 1994 (Cth), prescribing a time limit of 28 days from notification). The Tribunal does not have any statutory discretion to extend time for the making of such an application. This provides an additional reason why the Tribunal could not have considered the applicant's application.
No substance in any of the grounds of review
The first ground of the application contends that that the Tribunal made a “judicial mistake” when finding that it did not have jurisdiction. Contrary to what is asserted by Ground 1, for the reasons set out above, the Tribunal was plainly correct to find that it did not have jurisdiction to conduct a further review of the delegate's decision. Ground 1 must fail.
Ground 2 asserts that the Tribunal denied the applicant natural justice. The complaint fails on the facts. As expressly noted by the Tribunal at [4], on 1 June 2020 the Tribunal sent a natural justice letter to the applicant inviting him to comment on the issue of jurisdiction but no response was received from the applicant.
To the extent that that the applicant may be intending to complain that the Tribunal did not invite him to a hearing, such a complaint would be misconceived. The Tribunal had no jurisdiction to conduct a further review of the delegate's decision and hence was under no obligation, and indeed had no power, to invite the applicant to a hearing.
The third ground is misconceived. The Tribunal had no jurisdiction to conduct a further review of the delegate's decision and hence was under no obligation, and indeed had no power, to investigate the applicant's protection claims and assess the applicant's risk of significant harm as defined in s 36(2A) of the Migration Act 1958 (Cth).
I conclude that the applicant has no reasonable prospect of successfully prosecuting the judicial review application, and it should be dismissed under rule 13.10(a) of the Federal Circuit Court Rules.
The Minister also seeks an order for costs in accordance with the Court scale. The applicant pointed out that he has no work rights in Australia, but impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 15 December 2020
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