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[2007] FMCA 713
General information, not legal advice.
Federal Magistrates Court of Australia
2007-04-12
Mr J
Original judgment source is linked above.
(1)
The application is dismissed under Rule 44.12(1)(a).
(2)
The applicant is to pay the costs of the first respondent fixed in the amount of $2,100.
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
This is a proceeding under Rule 44.12 of the for an order to show cause. Under it is for the applicant to satisfy the Court that the application raises an arguable case.
The applicant husband (the "applicant") lodged his first application on 2 September 2002 for review of the delegate's decision of 7 August 2002 not to grant protection visas to the five applicants covered by this matter.
The Department notified the applicant of an incorrect period in which to lodge an application for review of the decision of the delegate. Notwithstanding that notification, the applicant lodged his application for review within the correct period. The Tribunal then considered the application for review, and on 17 June 2003 affirmed the decision of the delegate not to grant protection visas.
The applicant then lodged a second application with the Refugee Review Tribunal ("the Tribunal") dated 8 September 2006 to review the same decision of the delegate of the Minister (CB 104-7). By decision signed on 27 October 2006 (CB 115), the Tribunal decided that there was no legal basis for the Tribunal to accept a second review application, or to reconsider the delegate's decision. In support of that conclusion the Tribunal referred to the decisions in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [30] and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7]. The Tribunal concluded that:
As the Tribunal has already discharged its functions under the Act to review the delegates decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.
The Court brought to the applicant's attention the passage immediately above, and invited the applicant to make submissions about it. The Court notes that the applicant did not have a copy of the green book in Court, however, the Court is satisfied that a copy was sent to the applicant, as well as a copy of the decision of the Tribunal (see letter dated 27 October 2006: CB 114). The applicant stated in Court that he is aware of the decision of the Tribunal and does have a copy of it.
The applicant claims that the Tribunal failed to comply with s.65 of the Migration Act, as it did not state the correct statutory time limit for seeking a review, and that therefore the decision by the Tribunal cannot be taken as a decision delivered to him. It appears as though the applicant intended to refer to s.66. The failure to notify the applicant of the correct time limit did not affect the applicant's ability to file his application within the prescribed time limit. It was a valid application and was considered by the Tribunal. The applicant was, therefore, not prejudiced by the error in that letter. Therefore a failure to specify correctly the time limit for review did not affect the validity of the decision. The decision is valid and the Tribunal was functus officio after it handed down its first decision on 17 June 2003.
The applicant complains that the decision of the delegate was not correct. This application is not for review of that decision and the ground alleged has no relevance in this review.
The Court finds no error of law in the Tribunal's decision.
The Court is not satisfied that the application has raised an arguable case for the relief claimed and dismisses the application.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Turner FM
SZJQY & Ors
Minister for Immigration & Anor [2007] FMCA 713
(2000) 199 CLR 343
(2002) 209 CLR 597