A47 of 2003 v Minister for Immigration

[2007] FMCA 406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A47 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 406

MIGRATION – Refugee – no jurisdiction – application out of time – review of Delegate’s decision and Tribunal decision – Tribunal ‘cured decision’ – primary decision – privative clause decision – abuse of process – application dismissed.

Migration Act 1958, ss.474, 476, 477

SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065
SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1528
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132
NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541
MZXJP v Minister for Immigration & Anor [2006] FMCA 1010
SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1292
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906

Applicant: APPLICANT A47 OF 2003

First Respondent: MINISTER OF IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2623 of 2006

Judgment of: Nicholls FM

Hearing date: 20 March 2007

Date of Last Submission: 28 November 2006

Delivered at: Sydney

Delivered on: 20 March 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Solicitor for the Respondents: Ms. A. Nesbitt

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The reference to the first respondent be amended to read the “Minister for Immigration and Citizenship”.

2. The application made on 18 September 2006 to this Court is dismissed.

3. The applicant is to pay the first respondent’s costs set in the amount of $2500.00

4. The applicant not be permitted to file any further applications in relation to the Tribunal decision of 7 January 2003 and in relation to the first respondent’s delegate’s decision of 25 September 2001 without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2623 of 2006

APPLICANT A47 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised)

1. The proceedings before me were commenced by an application filed by the applicant on 18 September 2006 seeking review pursuant to s.476 of the Migration Act 1958 (“the Act”), in respect of both the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 November 2002 concerning the applicant, and handed down on

   
   

   7 January 2003, and an earlier decision of a delegate of the respondent Minister of 25 September 2001, which it affirmed in refusing a protection visa to the applicant.

2. An affidavit made by the applicant on 15 September 2006 was filed in this Court on 18 September 2006, which I took to assert matters by way of submission. The applicant’s complaints are:

   “1. A breach of rules of natural Justice occurred in connection with the making of decision. DIMA and RRT made an error of law when they failed to comply with the s424A of the Migration Act 1958.

   2. The application is not vexation nor the abuse of process. A delegate decision can be reviewed by the court under certain circumstance. The Court previously reviewed decision be the delegate in mater of SZCTH v Minister for Immigration, ALAM v MIMA and NAMG v MIMA.

   3. The application is late, however the application refers to Chan Ta Crey v Minister for Immigration and Multicultural Affairs.”

3. Before me I also have a Response, filed by the respondent Minister on 19 October 2006, which asserts with reference to s.477(1) of the Act, that this Court has no jurisdiction to hear this application, as it was not filed within 28 days of the actual notification of the delegate’s decision and Tribunal’s decision. The respondent also asserts further, and in the alternative, that in light of the applicant’s prior and unsuccessful applications for judicial review, the matter should be dismissed as an abuse of process.

4. I also have before me the affidavit of Jonathon Wright, a solicitor in the employ of the respondent’s solicitors, sworn on 19 October 2006. The affidavit annexes a chronology and documentation relevant to the applicant’s application for a protection visa and his subsequent pursuit of merits review before the Tribunal and judicial review (of both decisions) before the Courts. At Annexure “A”, the chronology reveals:

   “BACKGROUND

   Applicant born in India 5 September 1959

   Applicant arrived in Australia 3 July 2001

   DIMIA

   Application for protection visa lodged 7 August 2001

   Delegate’s decision 25 September 2001

   RRT

   Application for review lodged 5 October 2001

   RRT hearing 14 November 2002

   RRT decision handed down 7 January 2003

   HIGH COURT

   Order nisi for a Writ of Mandamus,

   Writ of Prohibition and Writ of Certiorari filed 30 January 2003

   Orders of Hayne J remitting the matter to the Federal Court 1 July 2003

   FEDERAL COURT

   Orders of Emmett J refusing the order nisi with costs 30 April 2004

   FEDERAL MAGISTRATES COURT

   Application for judicial review lodged 10 May 2004

   Hearing before Nicholls FM 15 November 2004

   Orders of Nicholls FM dismissing the application with costs 9 June 2005

   FEDERAL COURT

   Notice of appeal lodged 20 June 2005

   Orders of Bennett J dismissing the appeal with costs 29 November 2005

   HIGH COURT

   Application for special leave filed 19 December 2005

   Orders of Heydon and Gummow JJ dismissing the application for special leave  5 September 2006

   FEDERAL MAGISTRATES COURT

   Application for judicial review lodged 18 September 2006.”

Relevant Legislation:

1. Section 476 of the Act provides:

   “Jurisdiction of the Federal Magistrates Court

   (1)  Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

   (2)  The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

   (a)   a primary decision;

   (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

   (c)  a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

   (d)  a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

   (3)  Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions(Judicial Review) Act 1977 or section 44AA of the Administrativehttp:// - disp7#disp7 Appeals Tribunal Act 1975.

   (4)  In this section:

   "primary decision" means a privative clause decision or purported privative clause decision:

   (a)  that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

   (b)  that would have been so reviewable if an application for such review had been made within a specified period.”

2. Under s.5 of the Act:

   “migration decision means:

   (a) a privative clause decision; or

   (b) a purported privative clause decision; or

   (c) a non privative clause decision.”

3. A privative clause decision has the meaning given by s.474(2):

   “ Migration Act – Sect 474

   …

   (2) …"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

4. Section 477 of the Act, which became operational on 1 December 2005, provides for time limits set on applications made to this Court:

   “SECT 477

   Time limits on applications to the Federal Magistrates Court

   (1)  An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

   (2)  The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
   (a)  an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
   (b)  the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

   (3)  Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

   (4)  The regulations may prescribe the way of notifying a person of a decision for the purposes of this section."

5. Schedule 1, Clause 42(a) to the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”) provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:

   “Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:

   (a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and

   (b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and

   (c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”

6. The definition of “migration decision” therefore applies to both the decisions of the delegate and the Tribunal. Furthermore, as s.477 applies to privative clause decisions, purported privative clause decisions, or non-privative clause decisions, the time limits affect all migration decisions, regardless of whether they are affected by jurisdictional error (see SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065 per Cowdroy J at [5]).

7. At the hearing before me, Ms. A. Nesbitt appeared for the respondent. The applicant was self represented and assisted by an interpreter in the Tamil language of Indian ethnicity. This matter had previously been set down for hearing on 2 March 2007. The applicant objected to proceeding with an interpreter in the Tamil language who was not of Indian ethnicity. The hearing was adjourned to today and an appropriate interpreter was arranged, in accordance with the applicant’s request.

8. In his application the applicant asserts that he received notification of the delegate’s decision on 28 September 2001 and of the Tribunal’s decision on 9 January 2003. Further, the evidence before the Court is that the applicant sought review by the Tribunal of the delegate’s decision on 5 October 2001, such that he must have had notice of the delegate’s decision prior to that time to have done so. The Tribunal’s decision was the subject of proceedings before the High Court filed on 30 January 2003 and subsequent challenges before me (dismissed 9 June 2005) and in the Federal Court on appeal (dismissed with costs on 29 November 2005). The applicant’s special leave application in the High Court was also dismissed on 5 September 2006.

9. There can be no doubt that for the purposes of s.477 of the Act, the applicant had actual notice of the delegate’s decision and the Tribunal’s decision well before 1 December 2005.

10. As the application before this Court was filed on 18 September 2006, well after 1 December 2005, the provisions of s.477 apply. Section 477(1) provides that for a remedy to be granted pursuant to s.476 of the Act, in relation to a migration decision, the application to the Court must be made within 28 days of the actual notification of the decision. As both the delegate’s decision and Tribunal’s decision were made and actually notified to the applicant prior to 1 December 2005, Item 42 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (“the Reform Act”) provides that the applicant is deemed to have been actually notified of the delegate’s decision and the Tribunal’s decision on 1 December 2005.

11. The applicant was therefore required to file within 28 days of 1 December 2005, that is, by 29 December 2005. This was not done. By filing on 18 September 2006, the application was over nine months out of time.

12. In his application now, the applicant also applies for an extension of time within which to make his current application. In relation to the delegate’s decision he relies on SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1528, Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132, NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541 and also relies, in respect of both decisions on “Chan Ta Crey v Minister for Immigration & Multicultural Affairs” (presumably Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1292 (“Chan Ta Srey”)).

13. Chan Ta Srey was a Judgement given in 2003 that arose out of circumstances where the applicant was in immigration detention and a defect was found in the delegate’s decision such that it had relevance to the granting of a bridging visa, which would have enabled the applicant to be released from detention. No such circumstances are put forward by this applicant.

14. But in any event, that case was decided in circumstances involving a different relevant statutory regime. The “s.477” referred to in that case predated 1 December 2005 and was concerned with the time limits for applicants to the Federal Court at that time.

15. While the provisions of the current s.477(2) of the Act do enable the Court to grant an extension for the making of the application where the Court is satisfied that it is in the interests of the administration of justice to do so, such an application can only be made within a period of a further 56 days from the period of 28 days specified in s.477(1) of the Act. That is, where the application for extension is made within 84 days of 1 December 2005, that is, 23 February 2006. As the current application was filed on 18 September 2006, it has also been filed outside the 84 day period prescribed s.477(2), and the Court has no discretion to extend time (MZXJP v Minister for Immigration & Anor [2006] FMCA 1010, SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065).

16. Further, in relation to the delegate’s decision, while subject to the provisions of s.477 of the Act, as set out above, I informed the applicant that he would not succeed given the current provision of s.476(2) of the Act. The delegate’s decision is a “primary decision” which was not only capable of being reviewed under Part 7 of the Act (s.476(4)(a) of the Act), but was in fact so reviewed by the Tribunal. [The applicant’s reference to earlier cases plainly related to an earlier statutory regime].

17. Even further in relation to the delegate’s decision there is ample Federal Court authority by which I am bound that provides that even where the delegate’s decision contains jurisdictional error, such error would be “cured” by the fact that the Tribunal conducted a full review on its merits of the application (Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294, Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906).

18. At the hearing today, I explained the operation and effect of s.477 to the applicant, that is, having had actual notice of both decisions prior to 1 December 2005, that he was required to have made an application to this Court by 23 February 2006, and this had not been done. I explained that by filing on 18 December 2006, the application was well out of time for both the review he sought with respect to the Tribunal’s decision, as well as the delegate’s decision. In response to this, the applicant stated that the Tribunal’s decision was incorrect and that he would like the Court to have a look at the decision “another time”:

    “…So that you would be able to provide me with a living which is decent…”

    The applicant also stated that he would not go back to India because his life was threatened. Further:

    “…I would like to continue to appeal until such time that somebody will listen to my plea…There were mistakes made at the Tribunal, that’s why I given an appeal for reviewing the decision made at the Tribunal…”

19. The applicant may indeed be insistent that he will continue his appeals for judicial review until he succeeds in “somebody” listening to him. The applicant appears indifferent to the fact that he has had more than an ample opportunity to have put forward his complaints. His matter has been the subject of review by three tiers of Federal Courts. No reasonable observer could say that he has not been given a fair opportunity. I advised the applicant at the hearing that even if the Court did not have jurisdiction now to consider his current application, in all the circumstances (given the lengthy litigation history), his current application is plainly an abuse of the process of the Court.

20. In any event, this application is dismissed as the Court lacks jurisdiction to consider the applicant’s complaints about the delegate’s decision of 25 September 2001 and for a second time, the Tribunal’s decision of 7 January 2003, pursuant to s.477(1) of the Act. Nor can the Court extend the time for the making of this application pursuant to s.477(2) of the Act, as the application was made outside the time provided for that section. I will make orders dismissing the application with costs and that the applicant not be permitted to file further applications in relation to both decisions without the leave of the Court.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date:  24 April 2007