MZXHL v Minister for Immigration - [2006] FMCA 783

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXHL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 783

MIGRATION – Protection visa – Refugee Review Tribunal – summary dismissal.

Migration Act 1958, ss.416, 417, 474(2)
Federal Magistrates Court Rules 2001, Rule 13.10
Federal Magistrates Act 1999, s.17A

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Applicant:

MZXHL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 269 of 2006

Judgment of:

McInnis FM

Hearing date:

22 May 2006

Delivered at:

Melbourne

Delivered on:

22 May 2006

REPRESENTATION

Applicant:

In person (with interpreter)

Solicitor for the First Respondent:

Ms U. Jayasinghe

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 the application as amended be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,650.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT MELBOURNE

MLG 269 of 2006

MZXHL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application which the Applicant had filed on 21 February 2006. On that occasion it was not clear as to what decision the Applicant sought the court to review. Not surprisingly, the application although accompanied by an affidavit in support was then the subject of further orders made by a Registrar of the court on 15 March 2006 granting leave to the Applicant to file and serve further and better particulars of the application, including reasons for the delay in filing it, by 29 March 2006.
The Registrar on 15 March 2006 had also made orders that the First Respondent file and serve any notice of objection as to competency on or before 1 May 2006, and the matter be otherwise listed for a "summary dismissal" hearing this day. To understand the orders made by the Registrar, it is useful to note that apart from the absence of particulars in the application filed 21 February 2006 the Applicant, in the affidavit purportedly in support, which I note does not appear to be the subject of complete particulars of jurat, nevertheless simply seeks orders from the court to stop the Applicant's removal from Australia and does make reference to "Minister refusing to exercise powers to grant the Applicant a temporary 'stay'".
The affidavit seeks an order from the court revoking the Minister's decision. The First Respondent had then filed a response to the application simply on the basis that the application was out of time and in any event what it refers to as "the tribunal decision' was not affected by jurisdictional error and that accordingly s.474(2) of the Migration Act 1958 (the Migration Act) applied.
As indicated, the Registrar then made orders seeking to at least ensure that some degree of clarification was obtained as to whether or not the Applicant had sought review of the Tribunal decision, or whether the application was seeking to persuade the court that it should review the Minister's decision, which I shall refer to presently. The confusion was also added to in these circumstances by the Applicant annexing a copy of the Refugee Review Tribunal decision dated 9 July 2004 where the Tribunal had affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa.
In any event, a further document appears to have been filed presumably in response to the orders made by the Registrar. I accept for the present purposes, although it is not evident on the face of the order made by the Registrar, that the Applicant did in fact attend court on 15 March 2006 with the assistance of an interpreter and hence I conclude that an Amended Application filed by the Applicant on 30 March 2006 was in direct response to the orders made by the Registrar, even though the amended application was filed one day late.
In the Amended Application, the Applicant does provide decision details and it is clear that the date of the decision now sought to be reviewed is 7 December 2005. The grounds set out in the application are brief and to a large extent unhelpful. They simply provide as follows:
“Going to my country of birth will face serious persecution. Apply the court power to stop removal from Australia and want court to revoke the minister's decision.”
The Minister's decision has been annexed to an affidavit of Udara Jayasinghe affirmed on 1 May 2006 and more particularly described as exhibit UJ7 to that affidavit. It is clear that that decision was made by the Minister pursuant to the powers under s.417 of the Migration Act.
The application before this court for summary dismissal seemed to be based more on the question of time limits which may arise from a decision of a Tribunal rather than issues of jurisdictional error and the application of the privative clause to decisions of the Minister pursuant to s.417 of the Migration Act. It is noteworthy, as indicated earlier, that the Applicant though being present at the time of the Registrar's orders, which included fixing the application for summary dismissal of the hearing this day, has not appeared. I am satisfied that the Applicant had proper and due notice of this hearing.
It seems clear to me from a reading of the amended application that there are insufficient inadequate grounds upon which this court could conclude that there has been jurisdictional error. In the circumstances it is equally clear, as submitted by the representative of the First Respondent, that accordingly the decision of the Minister made pursuant to s.417 of the Migration Act is subject to s.476(2) of the Act which in turn should be cross-referenced to s.474(7) of the Act. I am satisfied that a decision of the Minister pursuant to s.417 is a privative clause decision and a final decision subject to there being any material before the court which might indicate jurisdictional error. There is indeed no material before this court that would provide any proper basis for the court to conclude that there is any jurisdictional error.
The background to the Applicant's claim is set out in the decision of the Refugee Review Tribunal to which reference was made earlier and I do not propose in this application to set out that material in any further detail other than to quote from that decision where the Tribunal states:
“The Applicant who claims to be a citizen of Fiji, arrived in Australia on 9 November 2003. On 19 December 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 16 March 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 1 April 2004 the applicant applied for review of that decision.”
It is clear from the Tribunal decision that it then considered in some detail the Applicant's claims. Given, however, that this application is an application seeking review of the Minister's decision made pursuant to s.416 of the Migration Act, it is not necessary for the court to consider in detail the reasoning of the Refugee Review Tribunal. In my view this is a clear example where the court should proceed to make an order that the application be dismissed and to do so pursuant to the powers the court undoubtedly has under Rule 13.10 of the Federal Magistrates Court Rules 2001.
I note the summary dismissal powers of the court are now subject to s.17A of the Federal Magistrates Act 1999 and that it is not necessary in an application of this kind for the court to determine that the application is hopeless or bound to fail for it to have no reasonable prospect of success. The decision to summarily dismiss a claim, however, in my view, subject to that new provision, is still a matter to be approached by courts with a degree of caution and there are still principles which apply previously referred to in numerous cases arising out of a decision of Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 as follows:-
“The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
In this case, whilst I accept I do not have to consider whether the case is hopeless or bound to fail, it is my concluded view on the material before me that even if that were the test I would conclude that this is a case in the absence of appropriate particulars or any adequate grounds suggesting jurisdictional error that this is indeed a case hopeless or bound to fail. Nevertheless I do not have to consider that test and I have no hesitation concluding that the application has no reasonable prospect of success and, accordingly, in my view it is appropriate the application be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 22 May 2006