FEDERAL COURT OF AUSTRALIA

Applicant S1914/2003 v Minister for Immigration & Citizenship [2007] FCA 737

APPLICANT S1914/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 444 OF 2007

MARSHALL J

15 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is dismissed.

2.                  The applicant is to pay the costs of the first respondent, fixed at $2000. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant applies for leave to appeal an interlocutory judgment of a Federal Magistrate.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) on the basis that it did not raise an arguable case. 

2                     The application for leave to appeal is without merit and should be dismissed.  The Court below correctly determined that the Tribunal did not err in holding that it lacked jurisdiction to entertain an application to review a decision of a delegate of the first respondent Minister where the Tribunal, differently constituted, had already affirmed the delegate’s decision and where there was no order of a Court invalidating the original Tribunal’s decision.  In fact, the applicant applied unsuccessfully for judicial review of the original Tribunal’s decision.

3                     The applicant does not contend that the original Tribunal’s decision involved a failure to discharge its statutory function such that the decision may be re-opened (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597).  In any event, the appropriate course, in such circumstances, would have been for the applicant to seek leave to appeal out of time the earlier Court decision.  The original Tribunal reviewed the delegate’s decision.  The Migration Act 1958 (Cth) does not permit further reviews of the same decision where there is no error in the decision of the Tribunal which originally reviewed the delegate’s decision. 

4                     The application for leave to appeal must be dismissed because the proposed appeal from the Court below is bound to fail.  It is unnecessary to address the other proposed grounds relied on by the applicant because no issue of procedural fairness or natural justice arises where the Tribunal declines to entertain a review on the basis that it has no power to do so.

5                     The Court will order that the application for leave to appeal is dismissed with costs.

Associate:

Dated:         15 May 2007