SZEWV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court: SZEWV v Minister for Immigration [2007] FMCA 922, in which Scarlett FM found that there was no error in the decision of the Refugee Review Tribunal made on 30 January 2007, in that it did not have jurisdiction in the matter. The appellant had applied for a protection visa after arriving in Australia in late 2003. In early 2004, a delegate of the Minister refused to grant the visa. Both the appellant and his migration agent were advised in writing by letter dated 6 February 2004 of that decision. 2 No application for review was filed by the appellant or anyone on his behalf until 15 April 2004, which was outside the 28 day period following notification of the delegate's decision to the appellant. In earlier proceedings, Lloyd-Jones FM found that the last day on which the tribunal could accept a valid application for review was 16 March 2004: SZEWV v Minister for Immigration [2005] FMCA 1525 at [4]. Before Lloyd-Jones FM the appellant was seeking constitutional writ relief against the tribunal's refusal to consider his application because it had been filed too late. There he made a claim that he had, in fact, lodged two applications for review with the tribunal. 3 His Honour noted that after the tribunal had formed the preliminary view in 2004 that it had no jurisdiction because the application it received on 15 April 2004 had been filed too late, the appellant responded to the tribunal at that time saying that he had lodged two applications, the one of 15 April 2004 being the second which he had lodged after he had inquired as to why he had not received a response from the tribunal in respect of the initial filing. The tribunal had no record of any earlier filing. The appellant particularised his claim for constitutional writ relief heard by Lloyd-Jones FM with an allegation that he had filed his application for review within the statutory time limit, but the tribunal had not received it. He said he would provide a statutory declaration to support that. 4 Before his Honour, the appellant was unrepresented. His Honour found that even if the appellant had posted an application for review, as he claimed, on 5 March 2004, unless and until the tribunal actually received it, it had not been given to the tribunal for the purposes of s 412(1)(b) until it had been received in the registry of the tribunal: SZEWV [2005] FMCA 1525 at [11]. His Honour then found that there was no evidence provided by the appellant to support his contention that he had filed an application on two occasions, the first being by mail: SZEWV [2005] FMCA 1525 at [14]. His Honour concluded that he had been unable to identify any ground that the tribunal had committed a jurisdictional error and dismissed the claim. 5 The appellant appealed to this Court, and Jacobson J heard and dismissed the appeal: SZEWV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 234. His Honour noted that the appellant had appeared at the hearing of that appeal and relied on an affidavit he had sworn on 1 March 2004 in which he had asserted that his failure to lodge the application for review in the tribunal within the time limit had been due to the fault of his migration agent, and noted that he had made the same point in his written submissions and from the bar table on the hearing of the appeal: SZEWV [2006] FCA 234 at [11]. His Honour found that there was no error in Lloyd-Jones FM's decision and that the tribunal had rightly held that it did not have jurisdiction. 6 The appellant then sought special leave to appeal in the High Court, which was refused on 5 October 2006 by Gummow and Heydon JJ: SZEWV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 562. They said that there was no power to extend the time for the filing of an application for review under the Act, and continued: 'The applicant contends that the failure to comply with the relevant time limit was the fault of his migration agent. If that is so, it is regrettable. But it does not reveal error in the courts below. The applicant's application for special leave to appeal to this court was filed late and an extension of time is required. That should be refused on the ground that, even if it were granted, it is inevitable that the application would be dismissed.' 7 After the decision of the High Court, the appellant applied on 20 October 2006 for the tribunal to review his case a second time. The tribunal in its decision recited the history and noted that in the appellant's submissions to it dated 27 November 2006, he asserted that he had been cheated by his former migration agent which was the reason that his previous application for review had not been lodged within the prescribed period, and he wanted the opportunity to give evidence to the tribunal regarding his protection visa claims. The tribunal again found that the delegate's decision had been properly notified by the letters of 6 February 2004 and was deemed to have been received by him on 17 February 2004. It therefore found that the 28-day period expired on 16 March 2004, and that the application which was filed on 20 October 2006 was out of time and unable to be considered by the tribunal. 8 The appellant then filed a new application in the Federal Magistrates Court in February 2007, claiming that the tribunal had failed to accord natural justice, had made a jurisdictional error by identifying the wrong issue to determine his case, and had acted in excess of its jurisdiction. No substance appears from those grounds or any particulars given. 9 Scarlett FM noted that the appellant asserted in his particulars of the claim that he had been denied natural justice and that his previous migration agent had been negligent: SZEWV [2007] FMCA 922 at [3]. As his Honour concluded, once the tribunal had found it had no jurisdiction, it had no further obligations to afford natural justice and could commit no jurisdictional error by failing to hear and decide an application for review which the law prevented it from determining. He held that there was no error in the decision. 10 The notice of appeal asserts the same grounds as were raised before Scarlett FM, and adds an allegation that the tribunal acted in bad faith. Before me, the appellant argued that his migration agent had delayed applying to the tribunal, and therefore his case had not been heard. That appears to be an accurate summary of the situation in which the appellant has found himself. When asked by me why he was seeking to bring these proceedings afresh, he said that there had been an error in the lodging of his application for review and that he needed another chance. He said that the courts had to hear his case again, and that the real reason he was doing this was because he could not return to India. He said that his migration agent was at fault and had delayed in putting his application for review in, and that because he could not return to India was the reason why 'I am prolonging the litigation'. 11 That is not a proper use of the process of the Court. I am satisfied there is no substance in any of the grounds of appeal, and that the appeal is foredoomed to failure. It is a clear abuse of the process of the Court because it could not possibly succeed. It seeks to relitigate anew a case that has already been decided adversely to the appellant. While, as Gummow and Heydon JJ pointed out, in refusing special leave it would be regrettable if the migration agent had failed to comply with the time limits for seeking a review of the appellant's case, he has already litigated that very claim once in the previous round of proceedings and had it dismissed at every level of the Australian federal judicial system. It is inappropriate that the same case be run a second time and the time of the courts wasted with litigation that cannot possibly succeed. In my opinion, the proceedings should be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.