FEDERAL COURT OF AUSTRALIA

SZCKX v Minister for Immigration and Citizenship [2008] FCA 526

SZCKX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 196 OF 2008

COWDROY J

18 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1                     By application filed on 18 February 2008 the applicant seeks leave to appeal from the interlocutory decision of Federal Magistrate Orchiston delivered on 31 January 2008. Such decision dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 7 March 2007.

2                     An affidavit sworn by the applicant on 18 February 2008 in support of his application which attaches a draft notice of appeal. The affidavit makes the following three claims:

1.             The Federal Magistrates Court failed to consider my persecution in my home country if I go back at present.

2.             The Federal Magistrates Court failed to consider the adverse circumstances which would affect me if I go back my home country.

3.             The Federal Magistrates Court failed to find that I had denied natural justice.

3                     The grounds of appeal contained in the draft notice of appeal effectively repeat the claims made in the applicant’s affidavit.

PRIOR HISTORY

4                     On 24 October 2001, the applicant, who is a citizen of Bangladesh, lodged an application for a Protection (Class XA) visa with the first respondent. A delegate of the first respondent refused such application on 27 February 2003. On 24 March 2003 the applicant applied to the Tribunal for a review of the delegate’s decision. On 17 December 2003 the Tribunal affirmed the delegate’s decision (‘the first Tribunal decision’).

5                     On 9 January 2004 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia (‘the Federal Magistrates Court’) seeking review of the first Tribunal decision. On 6 December 2005 Federal Magistrate Driver dismissed the application with costs: see SZCKX v Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Anor [2005] FMCA 1810.

6                     On 21 December 2005 the applicant filed a notice of appeal in the Federal Court of Australia (‘the Federal Court’) from the decision of Driver FM. On 12 May 2006 Edmonds J dismissed the appeal with costs: see SZCKX v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 528.

7                     The applicant then applied for special leave to the High Court of Australia (‘the High Court’). Such application was dismissed on 14 December 2006: see SZCKX v Minister for Immigration and Multicultural Affairs and Anor [2006] HCA Trans 707.

SUBSEQUENT PROCEEDINGS

8                     On 10 January 2007 the applicant filed a second application for review with the Tribunal seeking that it again review the delegate’s decision. On 7 March 2007 the Tribunal found that it had no power to determine the application (‘the second Tribunal decision’).

9                     On 29 March 2007 the applicant filed an application in the Federal Magistrates Court for judicial review of the second Tribunal decision. Federal Magistrate Orchiston held that the second Tribunal was correct in finding that it did not have the power to reconsider the delegate’s decision because it was functus officio. Her Honour also found that the Court could draw the inference that the applicant was seeking to use the Court’s process ‘purely for the collateral purpose of extending his stay in Australia’. In view of these findings her Honour summarily dismissed the proceedings as an abuse of the process of that Court pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 (Cth).

APPLICATION TO THIS COURT

10                  The summary dismissal of the applicant’s application in the Federal Magistrates Court has the consequence that Federal Magistrate Orchiston’s decision was interlocutory (see Re Luck (2003) 203 ALR 1 at 4). Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that no appeal lies to the Federal Court from an interlocutory judgment unless the Court or a Judge gives leave to appeal.

11                  The principles which guide this Court when considering an application for leave to appeal from an interlocutory judgment are contained in the Full Court’s decision in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Those principles require the Court to consider whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong.

Is the Federal Magistrate’s decision attended by sufficient doubt?

12                  Paragraph 411(1)(c) of the Act provides that a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 414 of the Migration Act 1958 (Cth) (‘the Act’) requires the Tribunal to review an RRT-reviewable decision. However, it has been held that the Tribunal has no jurisdiction to review, for a second time, a decision already made by the Tribunal: see Jayasinghe v Minister for Immigration and Ethnic Affairs and Another (1997) 76 FCR 301.

13                  In Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 the High Court considered the application of Div 2 of Pt 7 of the Act, which contains s 414. The majority of the High Court said at [30]:

It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate made on 11 October 1995, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.

14                  With regard to the second Tribunal decision, s 416 of the Act provides a limited circumstance in which the Tribunal may consider a further application. However, as was held by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs at 316-317, s 416 could not be construed as implying a power in the Tribunal ‘to re-open or reconsider a decision’.

15                  In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 French J found (at 444) that, in the absence of clear words, it would not be proper to imply a power for the Tribunal to rehear an application which has been the subject of an earlier decision of the Tribunal.

16                  In Singh v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 531 Merkel J at [35] said:

I accept that the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act: see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; 145 ALR 532; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400; 150 ALR 76; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251.

17                  Accordingly, as the first Tribunal had delivered its decision it was thereupon functus officio and had no jurisdiction to entertain a further application in respect of the same refusal of the applicant’s visa application by the delegate. Such reasoning has been applied in other decisions: see for example SZASP v Minister for Immigration and Citizenship [2007] FCA 771.

18                  The Court finds that the Federal Magistrate’s application of the principles in Second Life Decor Pty Limited v Comptroller-General of Customs and Others (1994) 53 FCR 78 and Walton v Gardiner (1993) 112 ALR 289 concerning abuse of process was correct.

19                  The Court has considered the decision of Federal Magistrate Orchiston and finds that it contains no demonstrable error. Her Honour’s reasons for dismissing the application are consistent with the above authority.

20                  The Court accordingly finds that the Federal Magistrate’s decision is not attended by sufficient doubt to warrant leave being granted to the applicant to appeal from such decision.

21                  In view of this finding it becomes unnecessary to consider the second requirement in Decor Corporation v Dart Industries, namely whether substantial injustice would be occasioned if leave were refused.

22                  Accordingly the Court dismisses the application with costs.

Associate:

18 April 2008