FEDERAL COURT OF AUSTRALIA

Applicant S1836/2003 v Minister for Immigration and Citizenship [2008] FCA 1176

MIGRATION - whether the Refugee Review Tribunal is bound to review a decision of a delegate where the delegate’s decision had been reviewed by the Tribunal.

SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175

APPLICANT S1836/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 439 OF 2008

MOORE J

21 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave to appeal is granted.

2.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of aFederal Magistrateof 20 March 2008: Applicant S1836/2003 v Minister for Immigration and Citizenship & Anor [2008] FMCA 321.  The applicant had sought judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal of 21 May 2007. The Tribunal found that it had no jurisdiction to review a decision of the delegate of the Minister to refuse to grant a protection visa to the applicant as it had already discharged its function under the Act. These proceedings, like those in SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175, raise the issue of whether the Refugee Review Tribunal is bound to review a decision of a delegate in circumstances where the delegate's decision had been reviewed by the Tribunal in a manner that was not attended by jurisdictional error.

Background

2                     The background is as follows.

·         After entering Australia, the applicant applied for a protection visa on 17 August 1998. On 27 October 1999, a delegate of the Minister refused to grant the applicant a protection visa. The applicant disputes whether he was ever properly notified of the delegate's decision.

·         On 29 November 1999, the applicant applied to the Tribunal for review of the delegate’s decision. On 4 July 2000, the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant (the first Tribunal decision).

·         On 1 August 2000, the applicant filed an application for judicial review in this Court. On 11 October 2000, a judge of this Court made orders, by consent, requiring the Tribunal to undertake a review of the delegate's decision.

·         On 28 February 2001, a differently constituted Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant (the second Tribunal decision).  Around this time, the applicant was joined as a represented party to the High Court proceedings S89/99 (see Muin v Refugee Review Tribunal (2002) 190 ALR 601).

·         On 13 June 2003, the applicant filed an application in his own name in the High Court, seeking orders nisi in relation to the second Tribunal decision. Pursuant to orders made by the High Court on 25 November 2002 in High Court proceedings S89/99, the applicant’s name was removed from the list of represented persons in those proceedings, and the applicants order nisi application was remitted to the Federal Court. This application was dismissed by this Court by consent on 30 April 2004.

·         On 11 May 2004, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the second Tribunal decision. This application was discontinued on 3 November 2004.

·         On 27 October 2005, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the delegate's decision of 27 October 1999. This application was dismissed as an abuse of process on 17 January 2006: S1836 of 2003 v Minister for Immigration [2006] FMCA 65. On 14 May 2006, the applicant sought leave to appeal to this Court from the Federal Magistrates decision of 27 January 2006. This application was discontinued on 15 September 2006.

·         On 9 November 2006, the applicant filed another application in the Tribunal seeking review of the delegate's decision.  On 23 January 2007, the Tribunal dismissed the application on the ground that it had already discharged its function under the Act to review the delegate's decision (the third Tribunal decision).

·         On 27 February 2007, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the third Tribunal decision. This application was dismissed as an abuse of process on 23 April 2007: S1836 of 2003 v Minister for Immigration & Anor [2007] FMCA 666.

·         On 21 May 2007, the applicant filed an application in the Federal Court seeking leaving to appeal from the decision S1836 of 2003 v Minister for Immigration & Anor [2007] FMCA 666. This application was discontinued on 4 June 2007.

·         On 22 June 2007, the applicant lodged an application in the Tribunal requesting it to conduct another review of the delegate's decision. On 18 September 2007, the Tribunal dismissed the applicant's application on the basis that its review powers were functus officio (the fourth Tribunal decision).

·         On 15 October 2007, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the fourth Tribunal decision. This application was dismissed by a Federal Magistrate on 20 May 2008. It is from this decision that the applicant seeks leave to appeal in this Court.

Disposition of the application

3                     The present proceedings were heard concurrently with proceedings NSD 479/2008, for which judgment has been given: SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175. For the reasons given in SZBWJ at [19] – [21], I am of the view that the Tribunal is not empowered to make another decision on review of the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error.

4                     The Federal Magistrate was correct in dismissing the application for review of the fourth Tribunal decision.  I grant leave to appeal but dismiss the appeal with costs.

Associate:

Dated:         21 August 2008