SZGQN v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 27 May 2008, Federal Magistrate Smith made orders in the Federal Magistrates Court of Australia on an application by the applicant, who has been identified for the purposes of these proceedings as SZGQN, for orders under s 476 of the Migration Act 1958 (Cth) ('the Migration Act') in respect of a decision of the Refugee Review Tribunal ('the Tribunal') dated 25 March 2008. The orders made by the learned Federal Magistrate were as follows: '1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 2. The applicant must pay the first respondent's costs in the sum of $1,000. 3. Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 23 May 2005 or 25 March 2008, or for review of the decision of the delegate of the first respondent dated 10 November 2004, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 2 August 2004, shall be accepted for filing without prior leave of the Court.' 2 The reference to 'Rule 44.12(1)(a)' was to the relevant rule in the Federal Magistrates Court Rules 2001. That rule provided: '44.12 Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or …' 3 Rule 44.12(2) made it clear that a dismissal under paragraph 1(a) was interlocutory. 4 Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') appeals shall not be brought from judgments, such as that of Federal Magistrate Smith, that are interlocutory judgments 'unless the Court or a Judge gives leave to appeal'. 5 It is well established that there are no rigid rules which are to be applied in respect of applications for leave to appeal which detract from the unfettered discretion of the Court conferred by s 24(1A) of the Federal Court Act. However, the cases provide general guidance, which the Court should normally accept, as to how the discretion is to be exercised. For a grant of leave to appeal, it is necessary for an applicant to establish that the relevant decision of the Federal Magistrate is attended with sufficient doubt to warrant its reconsideration by this Court and also that substantial injustice would result if leave were refused, supposing the decision to be wrong. (See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400). 6 The 'Court' referred to in the third order of Federal Magistrate Smith was, of course, the Federal Magistrates Court of Australia and was, in my opinion, confined to the filing of applications in that Court, although there would appear to be good reason for a like order to be made in this Court. 7 Under s 411(1)(c) of the Migration Act, a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 412 of the Migration Act makes provision for applications for review of RRT-reviewable decisions. An application for review must comply with s 412 of the Migration Act. Amongst other things, it requires that the application be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. 8 The applicant made an application for a protection visa following his arrival in Australia in 2004. That application was refused by a delegate of the Minister on 10 November 2004. On 7 December 2004, he applied for review of the Minister's delegate's decision. On 23 May 2005, the Refugee Review Tribunal affirmed the Minister's delegate's decision. 9 The applicant was not content to accept the Tribunal's decision on review and sought constitutional writ relief in the Federal Magistrates Court of Australia. His application for such relief was dismissed by Emmett FM on 13 September 2006 (see [2006] FMCA 1344). 10 An appeal to this Court was heard and determined by Collier J, the relevant appeal being dismissed on 27 March 2007 (see [2007] FCA 428). An application for special leave to appeal from the decision of Collier J came before the High Court and was refused on 7 February 2008 (see [2008] HCA Trans 35). 11 Having taken the matter to every court available to him and having been unsuccessful, the applicant chose to file a second Application for Review of the Minister's delegate's decision in the Refugee Review Tribunal on 27 February 2008. His reason for doing so is, so he informs the Court as presently constituted, because the prevailing government in Bangladesh is a military regime, he can't go back to his country. There have been changed circumstances and the Refugee Review Tribunal should have regard to those circumstances. 12 The Tribunal declined to entertain the second application for review. Thereupon the applicant instituted a fresh application in the Federal Magistrates Court of Australia in relation to the Tribunal's failure to consider his case a second time. That application came before Smith FM on 27 May 2008 and was disposed of by him in the manner indicated at [1] above. 13 The very issue which the applicant in this case would wish the Refugee Review Tribunal to consider under his second application was the one which the High Court addressed in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343. At [30] Gleeson CJ, McHugh, Gummow and Hayne JJ said: '30 It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act [in which sections 411 and 412 of the Migration Act are to be found] 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 [in that case] 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.' 14 In Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311 Goldberg J observed in respect of a Tribunal becoming 'functus officio': '[Counsel for the applicant] submitted that the doctrine of functus officio was a legal technicality primarily directed to the exercise of judicial power which should yield to the requirement that the Tribunal provide a mechanism of review that is fair, just, economical and quick (s 420(1)). I do not consider it is a correct characterisation of the doctrine of functus officio to call it a "legal technicality". Rather, it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219 at 225.' 15 Apart from other considerations the application for review which was lodged by the applicant with the Tribunal on 27 February 2008 was more than three years out of time. 16 The present Application for Leave to Appeal was filed on 16 June 2008. It was accompanied by an affidavit of the applicant said to have been both sworn and also declared and affirmed on a date which apparently followed the date on which the affidavit was witnessed. That affidavit set out in three paragraphs what was said to be the grounds of the Application for Leave to Appeal. It was accompanied by a draft Notice of Appeal but the draft Notice of Appeal did not include any specified grounds of appeal. 17 The grounds provided in the affidavit as the basis for the Application for Leave to Appeal were generally to the following effect: (1) The Federal Magistrate denied the applicant procedural fairness. He made an error of law by not considering a 'breach' of s 424A of the Migration Act. The Tribunal [not the Federal Magistrate] did not provide the applicant with an opportunity to comment on materials which the Tribunal had relied on in its decision. (2) The Federal Magistrate made an error of law by not considering that the Tribunal's finding that it had no jurisdiction was itself a jurisdictional error. (3) The Federal Magistrate erred by not considering the developments that had occurred in Bangladesh since the date of the Tribunal's original decision, on the application for review, of May 2005. 18 It seems to me that the first and third grounds bear no relationship to the issues which the court presently needs to take into account in the light of the principles enunciated above. The second ground is relevant but plainly without substance in the light of the provisions of the Act and in particular s 412(1)(b) of the Migration Act to which I have referred. 19 It is most unfortunate that the taxpayers of Australia are burdened with the expense of responding to applications, such as that which is presently brought, which are totally without merit. I am not satisfied that the decision of the Federal Magistrate in this case, finding that the applicant's application in the Federal Magistrates Court did not raise an arguable case for the relief claimed, was attended with any doubt let alone sufficient doubt to warrant its reconsideration by this court. 20 The Application for Leave to Appeal should be dismissed with costs. 21 The solicitor for the respondent Minister asks for a costs order to be made without any quantification of a particular sum. The Minister's solicitors have helpfully provided comprehensive written submissions in support of the Minister's case. However, when the matter was argued before the Court, little, if any, further assistance was provided by the solicitor representing the Minister. Authorities had been referred to in the Minister's submissions but the solicitor appearing for the Minister was unable to provide submissions explaining the facts of those cases and the context in which the principles relied upon were stated. I must say this is an unsatisfactory situation and one that I'm sure will not occur with this particular solicitor again. I think the appropriate order that should be made in the circumstances is that one-half of the costs of the Minister should be paid by the applicant. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.