FEDERAL COURT OF AUSTRALIA

SZAHH v Minister for Immigration and Citizenship [2007] FCA 810

SZAHH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 538 OF 2007

MARSHALL J

25 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.                  The application for leave to appeal is dismissed.

3.                  The applicant pay the first respondent’s costs of the application.

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 a judgment of the Federal Magistrates Court given on 19 March 2007.  The Federal Magistrate dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’).  The Tribunal held it did not have jurisdiction to review a decision of a delegate of the first respondent Minister as the delegate’s decision had already been reviewed by a differently constituted Tribunal (‘second Tribunal decision’). 

2                                             The applicant is a citizen of Bangladesh.  He applied for a protection visa on 1 May 2000.  The applicant claimed to fear persecution by reason of his political opinion arising from his alleged well-known association with the Jamaat-e-Islami, which he joined in 1987.  A delegate of the Minister refused to grant the applicant a protection visa on 5 June 2000.  The applicant sought review of that decision by the Tribunal.  On 25 February 2003, the Tribunal handed down its decision affirming the delegate’s decision (‘first Tribunal decision’).    

3                                             The applicant sought review of the first Tribunal decision in the Federal Magistrates Court.  The Federal Magistrate dismissed the application for review in a judgment dated 30 October 2003 (see SZAHH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 493).  The applicant appealed against the Federal Magistrate’s judgment to this Court.  On 18 March 2004, Stone J dismissed the applicant’s appeal (see SZAHH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 296).  The applicant then applied to the High Court of Australia for special leave to appeal Stone J’s judgment.  The special leave application was dismissed on 10 March 2005 (see SZAHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 135). 

4                                             The applicant again applied for review of the first Tribunal decision in the Federal Magistrates Court, purporting to set out grounds of review different to those grounds in his first application for review to that Court.  That application was dismissed on 6 June 2005 (see SZAHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 819).  The Federal Magistrate said at [19], “the fact is that the applicant has set out no new grounds in his application” and ordered that “the applicants are restrained from filing any further application in this Court seeking to review the decision of the Refugee Review Tribunal without leave of the Court”. 

5                                             A further application for review of the first Tribunal decision made to the Federal Magistrates Court was dismissed as an abuse of process on 5 April 2006 (see SZAHH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 488).  The applicant then lodged a second application for review of the delegate’s decision with the Tribunal.  In a decision dated 8 September 2006 and handed down on 13 September 2006, the Tribunal determined it had no jurisdiction in the matter, stating “as the Tribunal has already discharged its functions under the Act to review the delegate’s decision of 5 June 2000, it no longer has jurisdiction in relation to that decision” (‘second Tribunal decision’).

6                                             On 3 October 2006, the applicant filed in the Federal Magistrates Court an application for judicial review of the second Tribunal decision.  On 19 March 2007, the Federal Magistrate dismissed the application as having “no or no reasonable prospect of success” (see SZAHH v Minister for Immigration and Citizenship [2007] FMCA 307 at [11]).   

7                                             The applicant now applies to this Court for leave to appeal the judgment of the Federal Magistrate.  In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which he claims that the Tribunal failed to exercise its jurisdiction and did not follow proper procedure as required by the Migration Act 1958 (Cth).

8                                             I agree with the learned Federal Magistrate that the application before the Court below had no reasonable prospect of success.  The application for judicial review of the first Tribunal decision has been heard and determined.  In September 2006, the Tribunal correctly determined that it had no jurisdiction to review the delegate’s decision as the delegate’s decision had already been reviewed by the Tribunal (see Applicant S1914/2003 v Minister for Immigration and Citizenship [2007] FCA 737). 

9                                             The application must be dismissed, with costs. 

Associate:

Dated:         25 May 2007