SZIIV v Minister for Immigration & Anor [2006] FMCA 322

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal ("the RRT"). The decision was made on 23 January 2006 and the applicant asserts notification of it on 25 January 2006. The show cause application was filed on 14 February 2006. On that basis I find that the application was filed within time.

The application contains four grounds of review. They are, first, that the delegate and the RRT wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution. Secondly, that the delegate and the RRT applied the wrong test in relation to whether or not a Convention reason was an essential and significant reason for the persecution. Thirdly, that the delegate and the RRT had improperly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the political case filed by the applicant's previous spouse and, finally, that the delegate and the RRT failed to consider the reality of the chance of persecution by requiring the applicant to avoid persecution.

The matter came before me this morning on a first court date. It was immediately obvious that the application faced potentially insuperable difficulties. As I explained to the applicant, the Court no longer has any jurisdiction to review a primary decision. Relevantly, that is a decision of a delegate that is reviewable by a tribunal. Secondly, the grounds of review asserted in the application bear no relationship whatsoever to the decision of the RRT sought to be reviewed.

Bearing these factors in mind I ordered, pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") that there be an immediate show cause hearing pursuant to clause 44.12 of the Rules. I made that order over the objections of the applicant. The applicant had sought more time so that he could seek legal advice and obtain documents. I formed the view that that opportunity was likely to be futile.

The RRT set out the background facts relevant to this matter in the first paragraph of its decision. The applicant confirmed to me from the bar table that that statement of background facts is accurate. The applicant applied to the Minister's Department for a protection visa on 27 November 2000. On 5 February 2001 a delegate of the Minister refused that application. The applicant was notified of that decision by letter dated 5 February 2001. He sought review of the delegate's decision by applying to the RRT on 20 February 2001. On 23 May 2003 the RRT, differently constituted, affirmed the delegate's decision[1].

On 12 October 2005 the applicant lodged a further application with the RRT to review the delegate's decision of 5 February 2001. The RRT found that it had no jurisdiction to review the delegate's decision a second time. The applicant told me from the bar table that he challenged the first RRT decision in the Federal Court and the High Court but was on each occasion unsuccessful. He told me that the courts would not listen to him and said that the RRT decision was correct. I take that to mean that the Federal Court and High Court viewed the first RRT decision as free from legal error.

That is important because, if the first RRT decision had been vitiated by a jurisdictional error, the Federal Court or the High Court could, by constitutional writ, have required the RRT to deal with the matter again. In the absence of such an order the only issue for the second tribunal was whether it had any jurisdiction to entertain the second application made to it. The presiding member answered that question in the negative.

Having found that the RRT had no jurisdiction to entertain the second application there was nothing further that the RRT could do. There was no consideration of the merits of the applicant's claims to be a refugee. That is why his grounds of review are meaningless.

The RRT had two reasons for finding that it lacked jurisdiction. The first was that the applicant had been properly notified of the delegate's decision and the second application to the RRT was years outside the 28 day time limit for a review application. In that the RRT was correct. Even if the first review application had been for some reason invalid a second review application would still have been out of time. The applicant confirmed this morning that he was notified of the delegate's decision by letter dated 5 February 2001 and there appears no doubt that that notification was properly made.

Secondly, the RRT found that, in any event, it had no jurisdiction to review a delegate's decision twice. That is undoubtedly correct where the first RRT decision is validly made; see Jayawasinga v Minister for Immigration [1997] FCA 551; (1996) 76 FCR 301, in particular at page 311. Simply put, the RRT was functus officio after it had reviewed the delegate's decision for the first time.

The inability on the part of a review tribunal to review decisions more than once is apparent from the terms of the Migration Act 1958 (Cth) ("the Migration Act"). It is underscored by ss.48B and 417 of the Migration Act which exist to permit the Minister for Immigration to deal with exceptional circumstances. The applicant told me from the bar table the he has not yet exercised the opportunity to request ministerial intervention under either of those sections. In my view that is the only realistic option open to this applicant.

I have dealt with this matter unusually quickly. Ms Mendelsohn, for the Minister, was not in a position to make submissions on any issue. That is because she has not yet received the departmental file. Nevertheless, in my view, this was a case in which it was both necessary and appropriate to act promptly and firmly.

The second review application to the RRT was an abuse of the RRT's process. The application to this Court is an abuse of the Court's process. This Court should act promptly and firmly to deal with applications which display an abuse of its own processes. The principle in my view is even more obvious in relation to applications which also disclose an abuse of a review tribunal's process.

I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

On the question of costs, the Minister, through Ms Mendelsohn advises that costs incurred to date had been quite modest. The Minister seeks an order for costs fixed in the sum of $250. The applicant enquired about his rights of appeal but did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $250.