FEDERAL COURT OF AUSTRALIA

SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

MIGRATION – application for leave to appeal – Tribunal decision previously considered and special leave refused – further application to Tribunal for review of delegate’s decision –Tribunal correct in finding that it had no jurisdiction to reconsider delegate’s decision

MIGRATION – procedural fairness – natural justice – whether Tribunal denied procedural fairness and natural justice to applicant in finding that it had no jurisdiction – whether Tribunal obliged to comply with procedural requirements under the Migration Act 1958 (Cth) where there was no RRT-reviewable decision – whether common law procedural fairness and natural justice applied – no practical injustice from any denial of procedural fairness or natural justice

MIGRATION – whether letter from Tribunal misled applicant – no evidence that applicant was misled by letter – letter satisfied Tribunal’s obligations to provide procedural fairness and natural justice – applicant failed to take opportunity provided by Tribunal to make written submissions

Federal Magistrates Court Rules 2001 (Cth), r 44.12(1)(a)

Migration Act 1958 (Cth), ss 48A, 48B, 411, 412(1), 414, 422B, 424A, 425, 474

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 cited

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 cited

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

SZEYK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1526 of 2008

BENNETT J

19 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from an interlocutory decision of the Federal Magistrates Court, SZEYK v Minister for Immigration [2008] FMCA 1354, in which Smith FM dismissed his application.

Previous history

2                     On 22 June 2004 the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of the Minister’s delegate to refuse an application by the applicant for a protection visa.  On 23 March 2005 the Federal Magistrates Court made orders by consent quashing the decision and remitting it back to the Tribunal to be determined according to law.  The Tribunal (differently constituted) affirmed the delegate’s decision on 27 October 2005 (‘the second Tribunal decision’).

3                     In SZEYK v Minister for Immigration [2006] FMCA 1473, Scarlett FM dismissed an application for review of the second Tribunal decision on the basis that it contained no jurisdictional error.  Justice Lander dismissed an appeal from that decision (SZEYK v Minister for Immigration and Citizenship [2007] FCA 133).  The applicant sought special leave to appeal to the High Court (SZEYK v Minister for Immigration and Citizenship [2007] HCATrans 640).  Justices Hayne and Crennan dismissed the application as there was:

… no reason to doubt the correctness of the conclusions reached in the courts below that the applicant established no ground for the relief of the kind he sought.

4                     The applicant then commenced a second round of litigation challenging the second Tribunal decision.  In SZEYK v Minister for Immigration [2007] FMCA 2095, Emmett FM stated at [16] that the application was ‘an abuse of this Court’s process’ and ‘unjustifiably vexatious and oppressive’ and ‘likely to bring the administration of justice into disrepute’.

5                     Justice Buchanan dismissed an appeal from her Honour’s decision (SZEYK v Minister for Immigration & Citizenship [2008] FCA 70).  Once again, the applicant sought special leave to appeal to the High Court.  Justices Kirby and Heydon dismissed the application as an appeal would have no reasonable prospects of success (SZEYK v Minister for Immigration and Citizenship [2008] HCASL 378).

The present application

6                     The applicant then made a further application to the Tribunal.  In its decision dated 7 July 2008 (‘the jurisdiction decision’), the Tribunal (which I may also refer to as the third Tribunal) held that it did not have jurisdiction to conduct a second review of the delegate’s decision as that decision had already been the subject of a valid review by the Tribunal and was no longer an RRT–reviewable decision under s 411 of the Migration Act 1958 (Cth) (‘the Act’).  The applicant applied to the Federal Magistrates Court for a review of the jurisdiction decision.  Federal Magistrate Smith dismissed the application.  His Honour found that the application was ‘plainly hopeless’ and dismissed it under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

7                     In his application for leave to appeal, the applicant sets out a number of grounds.  The grounds are also reflected in the draft notice of appeal and in the applicant’s affidavit in support of his application for leave to appeal.  It is not clear whether the grounds refer to the second Tribunal decision, which has twice been the subject of review by the Federal Magistrates Court, this Court and the High Court, or the jurisdiction decision.  Those grounds that refer to the second Tribunal decision do not relate to the jurisdiction decision the subject of the decision of the Federal Magistrates Court from which the applicant wishes to appeal and have no prospects of success.

8                     When asked to explain his grounds of appeal and the basis for his application for leave to appeal, the applicant reiterated his complaints about the second Tribunal decision.  He repeated an assertion that the Tribunal had not asked him questions about his submissions and that it had made mistakes.  He said that the Tribunal, in considering his application for a protection visa, made a mistake so he was entitled to ‘have the case reconsidered again’.

9                     That is simply not the case.  The decision of the delegate that he seeks to have reviewed has already been reviewed at every level.  An attempt to relitigate with respect to decisions that have been the subject of litigation and consideration up to the High Court and found to be free of jurisdictional error is an abuse of the process of the Court and vexatious and oppressive: SZCNP v Minister for Immigration and Citizenship [2008] HCASL 216; SZBPB v Minister for Immigration and Citizenship [2008] HCASL 164; MZXOW v Minister for Immigration and Citizenship [2008] HCASL 73.

10                  The further application to the Tribunal was an impermissible attempt to relitigate the delegate’s decision that had been the subject of review.  The High Court confirmed the absence of jurisdictional error in the second Tribunal’s decision.  In these circumstances, the third Tribunal’s duty was to assess whether it had jurisdiction before embarking upon a second or third review of the delegate’s decision.

11                  I turn to consider the grounds of appeal in the draft notice of appeal.  The grounds are:

·                    The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa application.

·                    The tribunal failed to properly and adequately identify documents the tribunal referred to when it became clear that the applicant was confused and uncertain of which documents the tribunal was referring to.

·                    The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

·                    The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.  The applicant was deprived of the natural justice and procedural fairness.

12                  As to the second ground, the only documents relevant to the Tribunal on the question of jurisdiction are the decisions of the Federal Magistrates Court, this Court and the High Court.  This ground relates to the second Tribunal decision and not to the jurisdiction decision.

13                  There are no particulars or evidence of the alleged bias or apprehension of bias and no basis for such allegations is apparent.  The allegations in the third and fourth grounds regarding bias or apprehension of bias are unfounded.

14                  I shall now consider the claims of denial of natural justice and procedural unfairness in respect of the jurisdiction decision.

15                  In his application for leave to appeal, the applicant identifies additional matters:

The Hon. Federal Magistrate court decision is not correct either as the making of the decision was an improper exercise of the F.M court’s judicial power.  The applicant was denied the natural justice both from the RRT and the Hon. FM court.  The applicant has been denied of procedural fairness.

…

The decision of the F.M court was the breach of natural justice and there is no reason to make decision in favour of the respondent.

16                  The applicant has filed an outline of written submissions in support of his application where he does not refer specifically to any of the grounds in the draft notice of appeal or the application for leave to appeal but addresses the ground of a denial of procedural fairness.  He says that when he filed his present application to the Tribunal, he was issued with a letter and then received no further correspondence from the Tribunal and was not asked the reason for his repeated application.  He says in his written submissions that he was expecting some kind of query from the Tribunal and that he was not given the opportunity to reply to any such query about the validity of his application.  There is no evidence to support that assertion.  He asserts that he was deprived of natural justice and that the Tribunal committed jurisdictional error.  He submits that nothing in the Act suggests that the Tribunal is given authority to determine questions of law and that he was not given the opportunity to be heard as required by the Act.

The Tribunal’s power to review a delegate’s decision

17                  Section 411 of the Act provides that a decision to refuse to grant a protection visa and a decision to cancel a protection visa are decisions reviewable by the Tribunal (ss 411(1)(c) and (d)).

18                  Section 412(1) of the Act provides that an application for review of an RRT-reviewable decision must:

1.                  be made in the approved form; and

2.                  be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

3.                  be accompanied by the prescribed fee (if any).

19                  Pursuant to s 414 of the Act, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.  The jurisdiction of the Tribunal is in respect of RRT-reviewable decisions.

20                  A valid application for review has not been made. The application for a protection visa was refused by the Minister’s delegate on 14 August 2003.  The applicant was aware of this decision as he applied to the first Tribunal on 25 August 2003.  The application to the third Tribunal was made on 23 June 2008, clearly outside the 28 day period.  Therefore, there was no valid application and the third Tribunal did not have jurisdiction pursuant to that application to review the delegate’s decision.

21                  Further, the second Tribunal had already reviewed the delegate’s decision.  Once the Tribunal has delivered its decision free from jurisdictional error, it is functus officio.  Once the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate’s decision (Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 per Goldberg J at 311).

22                  In Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 Gleeson CJ, McHugh, Gummow and Hayne JJ noted that the Act contemplates changed circumstances which might found a fresh application to the Tribunal, but imposes the limitations found in ss 48A and 48B.  As their Honours 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.

23                  In SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175, the applicants sought a further review by the Tribunal of a delegate’s decision. Justice Moore  said at [16]:

In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate’s decision in circumstances where the Tribunal’s original decision was not attended with jurisdictional error.  Treating the Tribunal as authorised to undertake a second review of the delegate’s decision would be contrary to the statutory aim of providing a mechanism of review that is “fair, just, economical, informal and quick”: see s 420(1) of the Act.

24                  As Smith FM said in SZEYK v Minister for Immigration [2008] FCA 1354 at [5]:

… the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate’s decision twice.  That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175.

25                  For these reasons, Smith FM did not err in his conclusion that the third Tribunal did not have jurisdiction to consider the application to conduct a second review of the delegate’s decision.  The third Tribunal correctly found that it lacked jurisdiction. 

The alleged denial of procedural fairness

26                  The applicant contends that he was denied procedural fairness by the third Tribunal.  He claims that when he filed his application he was issued with a standard letter and then received no further correspondence from the third Tribunal (until the letter notifying him of the decision) and was not asked the reason for his repeat application.  He claims that the third Tribunal did not give him an opportunity to reply concerning the validity of his application.

27                  The letter dated 23 June 2008 appears to be a standard Acknowledgement of Application letter.  The letter states:

When we get your file, we will decide if we can consider your review application.  If we can consider it, a Member of the Tribunal will look at the information you and the Department have given us and information about your country.  [emphasis added]

Will I be invited to a hearing of the Tribunal?

After looking at this information the Member may either:

·                    make a decision in your favour; or

·                    invite you to attend a hearing of the Tribunal

The Member may also:

·                    write to you for more information

·                    ask you to comment on information that the Tribunal has

28                  There is no evidence that the applicant was misled by the letter into thinking that he would be given another opportunity to be heard or to make submissions.  The letter does not state expressly or implicitly that the recipient will be given the opportunity to submit information to the third Tribunal concerning its decision whether it has jurisdiction to consider the review application.  In this regard it is not misleading.  Rather, as submitted by the Minister, the words of the letter convey that if, and only if, the third Tribunal is able to consider the applicant’s review application, the third Tribunal may then contact the applicant for further information or comment. 

29                  Further, the letter contains the following passage under the heading ‘What does the Tribunal expect me to do?’, relevantly stating that the applicant should:

Immediately send us any documents, information or other evidence you want the Tribunal to consider.  Any documents not in English should be translated by a qualified translator.

30                  The letter sent by the third Tribunal to the applicant represented an opportunity for, or invitation to him to make written submissions to the third Tribunal regarding the question of jurisdiction.  He did not avail himself of this opportunity.  The letter did not represent a failure to accord procedural fairness.

Procedural rights under the Act

31                  The Minister submits that:

The Tribunal’s first duty was to determine whether it had jurisdiction to consider an application for review.  In the course of so doing the Tribunal considered the form lodged by the applicant and any submission which the applicant submitted therein.  Any further right to procedural fairness before the Tribunal only arises if the Tribunal has the power to consider the application in the first place. Part 7 of the Migration Act, 1958 deals with review of protection visa decisions by the Tribunal.  Section 411 provides which decisions will be reviewable.  Only if a decision is such an “RRT – reviewable decision” (defined in s.5) will the procedures regarding the conduct of the review (see Division 4 of Part 7) be applicable.  In other words, the applicant’s only rights in the Tribunal arise from, or as a consequence of its jurisdiction to review.

32                  The preliminary finding of the third Tribunal, that it did not have jurisdiction to review the delegate’s decision, is a decision pursuant to s 474 of the Act.  The Minister, though not directly addressing the question of common law procedural fairness and natural justice, contends that the applicant’s only rights in the Tribunal arise from, or as a consequence of, its jurisdiction to review.  In other words, the Minister’s contention seems to be that where the Tribunal has no jurisdiction, the applicant has no rights to procedural fairness, arising from the Act or otherwise. 

Section 425(1) of the Act

33                  Section 425(1) of the Act provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  [emphasis added]

34                  Was the third Tribunal obliged to invite the applicant to appear to give evidence and present arguments relating to his application pursuant to s 425 of the Act?  If there was no RRT-reviewable decision, there was no “decision under review”.  It follows that the third Tribunal was under no such obligation.  I note that Barnes FM has concluded that no such obligation arises where the Tribunal finds that it has no jurisdiction (SZHMM v Minister for Immigration [2008] FMCA 343; SZHOK v Minister for Immigration [2008] FMCA 1104) or in relation to the preliminary issue of whether the Tribunal has jurisdiction (SZEAC v Minister for Immigration [2007] FMCA 1552).

The alleged denial of natural justice

35                  Section 422B(1) of the Act provides that Part 7 Div 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the conduct of a review.  The third Tribunal made a preliminary finding that it did not have jurisdiction to review the decision.  No review was undertaken, and Part 7 Div 4 of the Act, including s 422B, does not come into operation.  The requirements of natural justice are then not excluded by s 422B of the Act.

Common law natural justice and procedural fairness

36                  Where s 422B of the Act was not engaged, the third Tribunal may have been obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction or authorisation to review the application.

37                  Common law natural justice and procedural fairness require that the applicant be given a reasonable opportunity to deal with matters adverse to his interest that the decision maker proposes to take into account in exercising its power.

38                  The third Tribunal gave the applicant the opportunity to make submissions on the question of jurisdiction before reaching its decision, in accordance with principles of natural justice and procedural fairness.  The third Tribunal was not required to invite the applicant to a hearing, or to put its thought processes about its jurisdiction to the applicant for comment.  The invitation to submit further “documents, information or other evidence” satisfied the third Tribunal’s obligations to accord the applicant natural justice and procedural fairness, in circumstances where the applicant did not avail himself of the opportunity to make a submission or seek a hearing.  

What would the applicant have said to the Tribunal?

39                  I asked the applicant what he would have said to the third Tribunal had he been given the opportunity to address it on the question of jurisdiction.  I also asked the applicant to identify any error in the conclusion by Smith FM that the third Tribunal had not erred in finding that it had no jurisdiction to hear his present application.  The applicant was unable to make any relevant submission other than his assertion that the second Tribunal made a mistake and he wished to have the second Tribunal decision reconsidered.  Therefore, even if there had been a denial of natural justice or procedural fairness, no practical injustice flows from it (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37]).  As the Minister submits, an opportunity to address the Tribunal on the question of jurisdiction was ‘a hollow opportunity’. 

Additional matters

40                  In the applicant’s affidavit he alleges a failure on the part of the third Tribunal to comply with s 424A of the Act.  Such a complaint is misconceived in circumstances where the third Tribunal found that it had no jurisdiction to conduct a second review of the delegate’s decision.  Section 424A is part of those provisions of the Act which govern the procedures to be adopted in the conduct of a review (set out in Part 7 Div 4 of the Act).  Those provisions were not engaged.

Conclusion

41                  The applicant has not established any purpose in remitting the matter to the Tribunal or any practical consequence arising from any denial of procedural fairness or natural justice.  The applicant has not shown any error on the part of the Federal Magistrate nor has he shown that he has any prospects of success in an appeal from that decision.  No substantial injustice would result if leave to appeal is not granted.  The application for leave to appeal should be dismissed with costs.

Associate:

Dated:         19 December 2008