Hu v Minister for Immigration
[2007] FMCA 1370
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1370 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding that it had no jurisdiction as the delegate’s decision had been reviewed previously – interlocutory dismissal of show cause application – no arguable case. |
| Migration Act 1958 (Cth), ss.412, 476, 500 Freedom of Information Act 1982 Federal Magistrates Court Rules 2001 (Cth) |
| Hu & Ors v Minister for Immigration [2005] FMCA 1030 Hu & Ors v Minister for Immigration [2006] FCA 299 Hu & Ors v v Minister for Immigration [2006] HCATrans 564 |
| First Applicant: | JUNG SUNG HU |
| Second Applicant: | SINAE HO |
| Third Applicant: | EUNICE HU |
| Forth Applicant: | CHAN HU |
| Fifth Applicant: | WON HU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1734 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr O Young Blake Dawson Waldron |
INTERLOCUTORY ORDERS
To the extent that an extension of time is required for the application filed 1 June 2007, the applicant is granted an extension of time until that date.
The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1734 of 2007
| JUNG SUNG HU |
First Applicant
| SINAE HO |
Second Applicant
| EUNICE HU |
Third Applicant
| CHAN HU |
Fourth Applicant
| WON HU |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 24 April 2007 and notified to the first applicant (“the applicant”) by letter of the same date. The Tribunal found that it did not have any jurisdiction in the review before it because the relevant decision of the delegate had previously been reviewed by the Tribunal.
The show cause application filed on 1 June 2007 asserted actual notification of the Tribunal decision on 17 May 2007. On that basis I find that the application was filed within time.
Despite initial uncertainty, the applicant continues to rely upon that application as well as upon an amended application filed on 27 July 2007. The original application asserts jurisdictional error both in relation to a decision of a delegate of the Minister, which preceded the first Tribunal decision, and in relation to the first Tribunal decision itself. That application makes no direct attack on the decision of the Tribunal the subject of this proceeding.
The amended application purports to raise new concerns about the decision of the delegate. Again there appears to be no attack upon the decision of the Tribunal the subject of the show cause application.
The Minister filed a response on 10 August 2007. I incorporate the terms of that response in this judgment.
The First Respondent says the application ought to be dismissed because:
1. the Tribunal's decision is not affected by jurisdictional error for the following reasons:
a)on 11 March 1998, the applicant applied for a Temporary Business Entry (Class CU) visa;
b)on 26 July 2001, a delegate of the Department of Immigration and Multicultural and Affairs (as it then was) made a decision to refuse the applicant a Temporary Business Entry (Class CU) visa (delegate's decision);
c)the applicant made an application to the Migration Review Tribunal (Tribunal) for review of the delegate's decision on 22 August 2001;
d)manifestly, the applicant must have received notice of the delegate's decision by 22 August 2001 at the latest;
e)on 23 July 2003, the Tribunal, differently constituted, affirmed the delegate's decision (First Tribunal decision);
f)the applicant sought judicial review of the First Tribunal decision and the First Tribunal decision was found to not be affected by jurisdictional error: Hu & Ors v MIMIA [2005] FMCA 1030; Hu & Ors v MIMIA [2006] FCA 299; Hu & Ors v MIMIA & Anor [2006] HCATrans 564;
g)on 26 October 2006, the applicant again made an application to the Tribunal seeking review of the delegate's decision;
h)having already concluded a review of the delegate's decision, the Tribunal had discharged its functions under the Migration Act 1958, and no longer had jurisdiction in relation to the delegate's decision;
i)further, or in the alternative, that application was not made within 28 days after the applicant was notified of the delegate's decision (s412 of the Migration Act 1958 (Cth));
j)on 24 April 2007, the Tribunal found that it did not have jurisdiction to determine the matter;
k)in the premises, the Tribunal's conclusion was the only one open to it;
l)by reason of the above, the Tribunal was correct in holding that it did not have jurisdiction in respect of the application before it.
2. The grounds of the application are wholly unparticularised and do not disclose an arguable jurisdictional error by the Tribunal.
3. Ground 1 cannot succeed as it seeks review of the delegate's decision, which the Federal Magistrates Court does not have jurisdiction to review (s476(2)(a) of the Migration Act 1958 (Cth)).
4. Grounds 2 and 3 of the application are not capable of amounting to jurisdictional error.
I received as evidence the book of relevant documents filed on 2 July 2007. The applicant asserted that that book was incomplete and misleading. He tendered two additional documents, which I accepted. Exhibit A1 is a letter from the Tribunal dated 21 May 1998 apparently in relation to a sponsorship application in respect of a different applicant. The letter is dated the same day as the letter in the applicant's case appearing on page 4 of the book of relevant documents. The applicant asserted from the bar table that the signature on the letter at page 4 of the court book is a forgery because it is different from the signature on exhibit A1. I have to say that to my eye the signatures look remarkably similar.
The first applicant also tendered exhibit A2, a copy of the letter on page 4 of the court book which is unsigned. He apparently obtained this copy under the Freedom of Information Act 1982. He drew attention to the absence of a signature and inconsistent folio references on the exhibit and when compared with the document at page 4 of the book of relevant documents. He also suggested that the typeface in exhibit A2 is a different size. I see no legal significance in any of these matters. The fact that the letter forming exhibit A2 is unsigned may simply reflect an administrative practice of not keeping copies of signed letters on all files. The different folio numbers probably reflects the fact that several files have been involved, a visa application file and a nomination file in the department, and one or possibly two review files in the Tribunal.
This Court has no jurisdiction to review the decision of the delegate. Section 476(2) of the Migration Act 1958 (Cth) (“the Migration Act”) relevantly provides that the Court has no jurisdiction in relation to a primary decision. Subsection 476(4) defines a primary decision to include a privative clause decision or a purported privative clause decision that is reviewable under part 5 or 7 of s.500 of the Migration Act whether or not it has been reviewed.
The decision of the delegate was at least a purported privative clause decision. It was reviewable by the Tribunal and it was reviewed. It is therefore a primary decision for the purposes of s.476 of the Migration Act and this Court has no jurisdiction to review it.
Neither can the Court review the first decision of the Tribunal apparently made on 23 July 2003. That decision was the subject of proceedings in this Court and the Federal Court. The outcome of those proceedings was that there was no jurisdictional error in the decision of the first Tribunal. Thus, the decision of that Tribunal was a privative clause decision. I am bound by the decision of the Federal Court in Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 299. I note that the High Court refused special leave to appeal against that decision.
The applicants’ attempt to have the Tribunal review the delegate's decision for a second time was doomed to fail. The Tribunal was plainly correct in finding that it had no jurisdiction in respect of the second review application for the reasons that it gave. In addition, the Tribunal was correct in finding that it had no jurisdiction in relation to the sixth applicant who had been born after the visa application was lodged and who was not the subject of the delegate's decision.
The first applicant is concerned that the Minister's delegate did not perform her job effectively or lawfully. That is not a matter about which this Court can provide any relief. It is open to the applicant to seek Ministerial intervention should he wish the Minister to substitute a more favourable decision for that of the first Tribunal or to permit him and his family to make a fresh visa application. That is beyond the scope of this proceeding.
The applicants have failed to demonstrate an arguable case of jurisdictional error in the decision of the Tribunal the subject of the show cause application. The Court has no jurisdiction to deal with the first Tribunal decision or the decision of the delegate. I order that the application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The applicant contends that he should not be subject to a costs order because of the problems he sees in the decision of the delegate. However, that is beyond the scope of this proceeding. The Minister seeks an order for costs fixed in the sum of $2,250. That is less than the amount prescribed under the Federal Magistrates Court Rules 2001 (Cth) for a show cause hearing and I accept that costs of not less than amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party‑party basis. I order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 17 August 2007
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