FEDERAL COURT OF AUSTRALIA

SZACN v Minister for Immigration & Citizenship [2007] FCA 808

SZACN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 527 OF 2007

MARSHALL J

25 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.
2. The applicant pay the first respondent’s costs of the application on an indemnity basis. 
3. The applicant must not institute any proceeding in the Federal Court of Australia related to his protection visa application lodged on 28 June 2000 without leave of the Court.    

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 from an interlocutory judgment of aFederal Magistratedated 16 March 2007.  The application before the Federal Magistrate sought review of a decision of the Refugee Review Tribunal (‘Tribunal’) signed on 31 January 2007 and sent to the applicant on 2 February 2007.  In that decision, the Tribunal concluded it did not have jurisdiction to review a decision of a delegate of the first respondent Minister not to grant the applicant a protection visa because the Tribunal, differently constituted, had already reviewed the delegate’s decision (‘second Tribunal decision’).    

2                     The applicant is a citizen of Bangladesh and a member of the Freedom Party.  He claims to fear persecution by the Awami League by reason of his political opinion.  The applicant arrived in Australia on 6 June 2000 and applied for a protection visa on 28 June 2000.  The delegate refused to grant the applicant a protection visa on 30 June 2000 (‘delegate’s decision’).  The applicant sought review of the delegate’s decision in the Tribunal.  In a decision handed down on 21 November 2002, the Tribunal affirmed the delegate’s decision (‘first Tribunal decision’).  The applicant has sought review of the delegate’s decision and the first Tribunal’s decision on various occasions in the Federal Magistrates Court, this Court and the High Court.  A history of the proceedings is set out in the judgment of the Court below: SZACN v Minister for Immigration and Citizenship [2007] FMCA 339 (‘SZACN v Minister’) at [2].

3                     Most recently, on 30 November 2006, the applicant again applied to the Tribunal for review of the delegate’s decision.  The Tribunal concluded it did not have jurisdiction in the matter as the Tribunal had already discharged its functions under the Migration Act 1958 (Cth) to review the delegate’s decision. 

4                     The applicant applied to the Federal Magistrates Court for review of the second Tribunal decision on 27 February 2007.  The Federal Magistrate declared the application frivolous and vexatious and an abuse of the Court’s process (see SZACN v Minister [2007] FMCA 339 at [4]).  His Honour held the Tribunal was correct in finding it lacked jurisdiction to hear the matter and said that any attempt to have the Tribunal review the delegate’s decision for a second time was doomed to fail.  His Honour dismissed the application, stating at [8]:

The Court directs that any further application by this applicant to the Court in relation to any decision under the Migration Act 1958 (Cth), related in any way to his protection visa application lodged on 28 June 2000, is not to be accepted for filing by the Court, except by leave of a Federal Magistrate.  Any such application is to be served upon the Attorney‑General of the Commonwealth with a view to the Attorney‑General considering whether an application should be made pursuant to rule 13.11 of the Federal Magistrates Court Rules.

5                     The applicant now applies for leave to appeal the Federal Magistrate’s judgment.  In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which he states:

1.   Judicial review is sought that the Refugee Review Tribunal failed to accord the natural justice.

2.   Judicial review is sought that the Refugee Review Tribunal made error of law being jurisdictional error in that the Tribunal identified the wrong issue and/or relied on irrelevant material and/or ignored relevant material.

3.   Judicial review is sought that the Refugee Review Tribunal failed to exercise its jurisdiction under the Migration Act and/or acted in excess of its jurisdiction.

4.   Judicial review is sought that the Refugee Review Tribunal made the decision in bad faith.

6                     The judgment of the Federal Magistrate is plainly correct.  The application before him had no merit.  The Tribunal had no jurisdiction to review the delegate’s decision when it had already been affirmed in the first Tribunal decision (see Applicant S1914/2003 v Minister for Immigration and Citizenship [2007] FCA 737).

7                     The application must be dismissed, with costs.  Having regard to the history of the proceedings, I consider it is appropriate that the applicant pay the first respondent’s costs of the application on an indemnity basis.  I will also order that the applicant must not institute any proceeding in the Federal Court of Australia related to his protection visa application lodged on 28 June 2000 without leave of the Court. 

Associate:

Dated:         25 May 2007