SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164

MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa - applicants are citizens of Bangladesh - applicants are a husband, wife and child - claim that circumstances in Bangladesh have changed - second application to Tribunal - RRT-reviewable decision - requirements for a valid application - functus officio - judicial comity - where the decision of a delegate of the Minister has already been the subject of a valid review by the tribunal it is no longer an RRT reviewable decision.

SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 | Case summary | Zoe

[26]

Counsel for the Applicants, Ms McGarrity, submits that the only issue raised on the application for judicial review is whether the Tribunal erred in law in finding that it did not have jurisdiction to consider the Applicants' second application to review the decision of the delegate.
Subsection 414(1) of the Migration Act provides that, relevantly, if a valid application is made under s.412 for review of an RRT reviewable decision, the Tribunal must review the decision. A decision to refuse to grant protection visas to the Applicants is an RRT-reviewable decision (s.411(1)(c)).
Ms McGarrity referred to the decision of Emmett FM in SZBRB v Minister for Immigration & Anor[10] where her Honour held at [30] that once a delegate's decision had been reviewed by the Tribunal, the decision was no longer an RRT-reviewable decision. She submitted that the Applicants disagreed with that decision for two reasons:
1. There is no basis in the text of s.411 for finding that once a decision of the delegate has been reviewed by the Tribunal it ceases to be an RRT-reviewable decision; and
2. The possibility of a decision of the delegate being reviewed by the Tribunal more than once is specifically envisaged by s.416 of the Migration Act.
Counsel for the Applicants referred to VQAW v Minister for Immigration and Multicultural and Indigenous Affairs[11] where Ryan, Lindgren and Sundberg JJ recognised that there is no definition of a "valid application" in the Migration Act.[12] For an application to be valid, it must comply with the requirements of s.412.
The Applicants submit that their application was a valid application because:
1. it was made in the approved form;
2. it was given to the Tribunal within the time limit; and
3. the review fee was not payable.
The Applicants submit that as long as the requirements in ss.411 and 412 are satisfied there is nothing in the legislative scheme precluding them from bringing a second or even a third application for review of a delegate's decision. They applicants note that in SZHWA & Ors v Minister for Immigration & Anor[13] I accepted that the Act does not expressly preclude a further review application being submitted to the Tribunal.
The Applicants submit that the Tribunal erred in adding to the requirements for a valid application a fourth requirement, that the Tribunal has not previously reviewed and made a determination in relation the decision of the delegate. In other words, once the Tribunal has exercised its statutory duty to review the delegate's decision it is rendered functus officio.
The Applicants submit that the Tribunal, in finding that it had no jurisdiction to review a delegate's decision twice, simply relied on the decisions in Jayasinghe v Minister for Immigration and Ethnic Affairs (supra) and SZIIV v Minister for Immigration and Multicultural Affairs[14]. They submit that the Tribunal in the case under review and Driver FM in SZIIV misconstrued the decision in Jayasinghe.
The Applicants seek to distinguish the decision in Jayasinghe from the present case, submitting that the Applicants do not seek the reconsideration or re-opening of a decision by the Tribunal in relation to an application for review but an independent consideration of a second application for review.
It is the Applicants' case that the Tribunal's statutory function to review a decision is separately enlivened each time a valid application is submitted to the Tribunal and that the principle in Jayasinghe that the Tribunal may only exercise its statutory function to review a decision once is not relevant where a second valid application is submitted to the Tribunal.
The Applicants submit that, by implication, SZHWA was wrongly decided when I found that it would lead to absurd consequences if the Tribunal were to be required to consider a second application for review of a delegate's decision.[15] The Act, they claim, envisages that very absurdity and sets out a procedure in s.416 for dealing with that situation. They rely on the decision of Moore J in SZASP v Minister for Immigration and Citizenship[16] accepted in obiter that s.416 may be applicable in circumstances such as those in the present case:
- Section 416 also potentially has work to do in circumstances where the notification of a delegate's decision was not properly made and where applications for review to the Tribunal are not being regarded as being out of time.[17]
The Applicants submit that, unlike the case in SZHWA, the case under review is exceptional in the sense that their ability to make a second application to the Tribunal is the consequence of an error by the delegate. The insufficient notification of the delegate's decision meant that time had not begun to run for the purpose of the 28 day time limit.
The Applicants submit that Turner FM erred in deciding SZJQY & Ors v Minister for Immigration & Anor[18] which was a case where the applicant had lodged a second application for review of a decision of the delegate. In that case, the delegate had incorrectly notified the applicant of the period of time within which he was required to lodge an application for review. His Honour held that the Tribunal was correct in finding that it did not have jurisdiction to consider the second application. His Honour found that a failure to specify the time limit for review correctly did not affect the validity of the decision. The decision was valid and the Tribunal was functus officio.[19]
The Applicants also refer to Tribunal's statement that "changed circumstances do not provide any legal basis for the Tribunal to accept a second review application, or to reconsider the delegate's decision."[20] They note that the Tribunal relied on the decisions in Minister for Immigration and Multicultural Affairs v Thiyagarajah (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (supra).
The Applicants submit that the decision in Thiyagarajah differs from the present case because:
1. The present case does not involve the reconsideration or reopening of a Tribunal decision, but rather the Tribunal's statutory duty to review the decision of the delegate upon a second valid application being made.
2. The claims made by the applicants in the second application, that their circumstances have changed, are not being relied upon as the sole or even a partial legal basis for the Tribunal's jurisdiction to review the delegate's decision.
The Applicants also submit that the decision in Bhardwaj differs from the present case on its facts. In Bhardwaj an error by the Tribunal led to a hearing being held in the applicant's absence, leading to an unfavourable decision. The issue was whether the Tribunal had the power to hold another hearing and make a second decision in favour of the applicant.
In Bhardwaj, Gleeson CJ referred to Canadian authority to the effect that the principle of functus officio should not be strictly applied if the Tribunal has failed to discharge its statutory function and 'there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation'.[21]
For the First Respondent, the Minister for Immigration and Citizenship, submitted that the Migration Act has been construed o a number of occasions as not empowering the Tribunal to re-exercise a power of review of a delegate's decision, because the Tribunal is functus officio (see Jayasinghe; SZASP).
Mr Reilly, for the Minister, submitted that SZASP was a decision on appeal from this Court and is therefore a binding authority. Unless SZASP can be distinguished the application must be dismissed.
Counsel for the Minister submitted that the Applicants' contention that SZASP is distinguishable because the Tribunal held in this case that the original delegate's decision was not notified properly, so the application was not out of time. He went on to submit:
- However this is irrelevant as the Tribunal's decision in this case and the reasoning in SZASP were both based on the Tribunal lacking jurisdiction because of it being functus officio due to an earlier decision of the Tribunal, not because of the application before it being out of time. The Applicants' submissions refer to the observations on s 416 of the Act in SZASP at [17], but that paragraph expressly states that s416 only operates 'where an application is made to the Tribunal for review of a delegate's decision not previously the subject of review by the Tribunal' (emphasis added).[22]

[27]

To my mind, the starting point is whether the decision of the delegate was an RRT- reviewable decision. In SZBRB v Minister for Immigration & Anor (supra) Emmett FM held:
- [30] The applicant's allegation of a breach of s.416 of the Act is misconceived in that s.416 is relevant only to a review of 'an RRT reviewable decision'. The Delegate's decision that the applicant was seeking to have the Tribunal review had already been the subject of a valid review. In the circumstances, the Delegate's decision was no longer 'an RRT reviewable decision' (see s.411 of the Act).
- [31] Where the Tribunal has performed its statutory function there is no further function or act for the person authorised under the statute to perform.
On appeal, Rares J found her Honour's reasoning to be "unarguably correct."[23] I am bound to follow that decision.
It follows that SZIIV v Minister for Immigration and Multicultural Affairs and SZJQY & Ors v Minister for Immigration & Anor are not wrongly decided and, by the principle of judicial comity, I am bound to follow those decisions. I am not persuaded that I was wrong in SZHWA & Ors v Minister for Immigration & Anor.
Where the decision of a delegate of the Minister has already been the subject of a valid review by the Refugee Review Tribunal it is no longer an RRT reviewable decision under s 411. Where the Tribunal concludes that it has already discharged its function under the Act to review the Delegate's decision and a second application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision, there is no jurisdictional error.[24]
Section 416 has no relevance in circumstances such as the present case where the Tribunal has already conducted a valid review of the delegate's decision.[25]
No jurisdictional error has been made out. The Tribunal decision is a privative clause decision and is therefore final and conclusive (s.474(1)).
The application will be dismissed.
I am satisfied that the application is an abuse of process[26] and this is, of itself, a ground for dismissal. An abuse of process will almost inevitably lead to dismissal with costs, and I propose to dismiss this application with an order for costs in favour of the First Respondent.
I note that the Third Applicant is a child and, in the exercise of my discretion, I consider it inappropriate to make a costs order against a child. The order for costs will be made against the First and Second Applicants, who are adults.
In the circumstances, I propose to order that the Applicants are restrained from filing any further applications for review of the decision of the delegate dated 1st December 1999 or the decisions of the Tribunal dated 27th March 2002 and 18th May 2007 without the prior leave of the Court.

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 (21 February 2008)

SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 (21 February 2008)

Parties

Cases Cited (3)