FEDERAL COURT OF AUSTRALIA

SZCFB v Minister for Immigration and Citizenship [2008] FCA 527

SZCFB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 203 OF 2008

COWDROY J

18 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent in the amount of $2,500 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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

REASONS FOR JUDGMENT

1                     By Notice of Appeal filed on 18 February 2008 the appellant appeals from the decision of Federal Magistrate Barnes delivered on 5 February 2008 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 12 June 2007.

LITIGATION HISTORY

2                     The appellant, who claims to be a citizen of India, arrived in Australia on 3 May 2003 and on 24 June 2003 he applied to the first respondent (‘the Minister’) for a Protection (Class XA) visa. On 8 August 2003 a delegate of the Minister refused such application. By application for review filed on 28 August 2003 the appellant sought review of the delegate’s decision before the Tribunal.

3                     In its decision handed down on 5 December 2003 the Tribunal affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) visa (‘the first Tribunal decision’). The Tribunal found that the appellant provided misleading information to the Minister and had fabricated evidence regarding his alleged difficulties in India. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a reason relevant to the Convention Relating to the Status of Refugees 1951.

4                     On 16 December 2003 the appellant sought judicial review of the first Tribunal decision in the Federal Magistrates Court of Australia (‘the Federal Magistrates Court’). Such application was dismissed on 13 February 2006: see SZCFB v Minister for Immigration and Multicultural Affairs [2006] FMCA 238. The appellant then appealed to the Federal Court of Australia (‘the Federal Court’) from the decision of the Federal Magistrates Court. The appeal was dismissed by the Federal Court on 1 July 2004: see SZCFB v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 1189. The appellant then made an unsuccessful application for special leave to appeal to the High Court of Australia: see SZCFB v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2007] HCA Trans 176.

SECOND APPLICATION TO TRIBUNAL

5                     On 10 May 2007 the appellant made a second application to the Tribunal seeking that it again review the delegate’s decision. On 18 June 2007 the Tribunal handed down its decision (‘the second Tribunal decision’) which found the Tribunal had no jurisdiction to conduct the review. In doing so the Tribunal referred to the principle contained in Jayasinghe v Minister for Immigration and Ethnic Affairs and Another (1997) 76 FCR 301, namely that the Tribunal has no jurisdiction to review a delegate’s decision twice. The Tribunal concluded that since the Tribunal had already affirmed the decision of the delegate in its first decision the Tribunal had conducted its review and was thereby functus officio.

6                     On 9 July 2007 the appellant sought judicial review of the second Tribunal decision in the Federal Magistrates Court. An amended application was filed on 24 September 2007. On 5 February 2008 Federal Magistrates Barnes delivered a decision in which her Honour found that the Tribunal had no jurisdiction to carry out a second review of the delegate’s decision, and in so finding relied upon the principles referred to in the second Tribunal decision.

APPEAL TO THIS COURT

7                     The appellant’s notice of appeal sets out the following grounds:

1.             The RRT breached Section 412, section 416 and s 424A of the Migration Act 1958 Cth.

2.             The Federal Court, his honour failed to consider the relevant documents, issues in support of the application for protection visa

3.             The tribunal was in breach of section 424A(1) of the migration act and therefore committed jurisdictional error, error of law and denial of natural justice.

4.             The Federal Court was an error of law and denial of natural justice because it failed to remit the matter to the tribunal.

5.             The court failed to take into account relevant consideration and documents supplied by the applicant.

8                     As to the first and third grounds of appeal, Barnes FM at [18]-[19] of her Honour’s decision found that there had been no breach of ss 416 and 424A of the Act. The Court finds no demonstrable error in Barnes FM’s reasoning. The Court also finds that there was no breach of s 412 of the Act because the Tribunal accepted the appellant’s second application for review but found that it had no jurisdiction.

9                     As to the second ground of appeal the appellant alleges that the Federal Court ‘failed to consider the relevant documents, issues in support of the application for protection visa’. No particulars are provided and the Court is accordingly unable to deal with such claim.

10                  The fourth ground of appeal alleges that ‘the Federal Court was an error of law and denial of natural justice because it failed to remit the matter to the tribunal’. No particulars are provided and the Court is unable to comprehend the basis for this ground.

11                  The fifth ground of appeal asserts that ‘The court failed to take into account relevant consideration and documents supplied by the applicant’. Such ground is a repetition of the second ground of appeal.

12                  The principles relating to a second application seeking review of the same decision of a delegate have been clearly established in Jayasinghe v Minister for Immigration and Ethnic Affairs: see also Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 where 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.

Such principle was followed by this Court in SZASP v Minister for Immigration and Citizenship [2007] FCA 771.

13                  Accordingly, as the first Tribunal had delivered its decision it was thereupon functus officio. The Tribunal had no power to entertain a further application to review the decision of the delegate which had already been reviewed in the first Tribunal decision.

14                  The Court has considered the decision of Barnes FM and finds that it contains no demonstrable error.

15                  Accordingly the Court dismisses the appeal with costs.

Associate:

18 April 2008