MZXMI v Minister for Immigration
[2007] FMCA 723
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXMI v MINISTER FOR IMMIGRATION | [2007] FMCA 723 |
| MIGRATION – Application for judicial review – challenge to competency of application on basis no reviewable decision – application dismissed. |
| Migration Act 1958, ss.53, 66, 476, 494B, 534 Migration Regulations 1994, reg.2.16, 503 |
| Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 Plaintiff S157 v Commonwealth of Australia [2003] HCA 2 Minister for Immigration & Multicultural Affairs v Singh [2000] 98 FCR 77 NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 |
| Applicant: | MZXMI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 1181 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 1 May 2007 |
| Date of last submission: | 1 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 22 September 2006 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1181 of 2006
| MZXMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The following relevant facts are taken from the contentions of fact and law filed by the parties and are not controversial.
The Applicant is a 53‑year‑old male citizen of the Peoples Republic of China.
On 28 February 1997 the Applicant applied to the Respondent's Department ("the Department") for a protection visa (CB 10 to 36).
In that application he gave his address for correspondence as PO Box 309, Croydon Park, NSW 2133 (CB 16) and his residential address as 1 Cross Street, Croydon, NSW 2133 (CB 22).
On 19 August 1997 a delegate of the Respondent determined that the Applicant was not a person to whom Australia had protection obligations and refused the application. The notification letter includes the decision record of the delegate and was sent to the Applicant at his residential address at 1 Cross Street, Croydon, but the letter was returned unclaimed. The letter was not sent to the Applicant's post office box address, which had been nominated as his address for correspondence.
On 22 September 1997 the Applicant again applied to the Department for a protection visa (CB 48 to 70). In that application he erroneously stated that he had not previously applied for refugee status or a protection visa from the Department (CB 48).
On 23 August 2005 the Applicant, in some way that is not wholly clear but which is not the subject of any material dispute, advised the Department of a new address for correspondence as 9/845 Burwood Road, Hawthorn East, Vic 3132 (CB 72).
On 14 September 2005 the Applicant was notified by letter from the Department that his application lodged on 28 February 1997 had been refused. The letter enclosed the decision record. It was received by the Applicant.
On 22 September 2006 the Applicant issued the application in the current proceeding in which he seeks an order that the Respondent show cause why remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 ("the Act") in respect of a number of matters set out in the application (CB 2).
On 19 October 2006 the Respondent filed a response to the application and a notice of objection to competency. The latter took objection to the application of the jurisdiction of the Court on the ground that:
“The Applicant has not identified a decision which is reviewable under section 476 of the Migration Act 1958.”
On 15 February 2007 the Court ordered by consent that the Refugee Review Tribunal (“the Tribunal”) be removed as a party to the proceeding and that the title of the Respondent be changed to the “Minister for Immigration and Citizenship”.
That is the end of the agreed matters between the parties.
Counsel for the Applicant submitted that the issue in this case was whether there had been a valid notification to the Applicant of the delegate’s decision. He candidly conceded that his case relied upon a technical argument which itself relied upon a strict reading of the Act so far as notification was concerned.
Having traversed the legislative scheme as to notification and in particular the terms of s.494B of the Act, counsel concentrated upon an argument to the effect that, self‑evidently, notification had not been made within three working days of the date of the decision (in 1997) to the Applicant until 14 September 2005.
I will deal with the case of Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 (“Zhan”) later. Counsel for the Applicant referred to this case in some detail, as did counsel for the Respondent.
For the moment I will concentrate my attention upon the submissions made by counsel for the Applicant in respect of the case of Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 (“Chung”). That is a decision of Conti J given on 12 May 2003. At paragraphs [17] – [19] of that decision his Honour dealt with an objection on the part of the Respondent to the Federal Court's jurisdiction to review the application before the Court.
At paragraphs [18] – [19] his Honour dealt with competing submissions as to whether or not the notification contained in the Department's letter to the Applicant constituted a decision for the purposes of the Act. The Minister in that case contended that a notification did not represent a decision, because that did not involve a final or operative determination and did not amount to a decision for the purposes of s.474 of the Act. His Honour observed at [19]:
“The Minister's submission is I think clearly correct. For a decision‑maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of decisions such so to within section 474(3), particularly where the decision‑maker is subject to a statutory obligation to do so, whether explicit or implicit. The Applicant's submission involves a tautology of the Minister's decision‑maker function which is involved in the statutory process of making a privative clause determination.”
Counsel for the Applicant submitted that this was no longer good law, in light of Plaintiff S157 v Commonwealth of Australia [2003] HCA 2 (“S157”) in the High Court. He did not elaborate this submission in any significant way, but it is not clear to me that S157 has any effect in respect of Chung. He also suggested in reply that that part of his Honour's decision was obiter because his Honour had already addressed the issue of the validity of the notification given by the Minister and found that it was effective.
While it is true that his Honour had reached that latter conclusion, I do not accept that his Honour's reasons as to jurisdiction were merely obiter. In my respectful view, they are a reason for conclusions in relation to a matter actively before the Court and cannot properly be characterised as mere obiter dicta. Even if I am wrong in this regard,
I find, with respect, his Honour's reasoning persuasive and would adopt it in any event.
In one sense of course that is the end of this case. There simply is no decision giving rise to the possibility of any application of the sort now before the Court. Nonetheless, it is appropriate to deal with all arguments that have been presented. What has happened in substance is that the Applicant submitted an application for refugee status in 1997 which was rejected; albeit that it appears that the notice of rejection may have been sent to the wrong address.
There was considerable debate before me as to whether or not the notification attempted in 1997 had been effective. Much of that turned upon the terminology of s.66 of Act.
I requested that the parties send me submissions about the legislation in the form it was in 1997, because it seemed to me that the effectiveness or otherwise of any notification in 1997 would depend upon the terms of the legislation as it then stood.
The Applicant and Respondent have both forwarded me documentation in relation to that matter and they are in agreement as to the terms of s.53 of the Act. The Respondent has forwarded a version of s.66 of the Act, which the Applicant has not, and the Respondent has forwarded me copies of a regulation 2.16 of the Migration Regulations 1994 (“the Regulations”) headed “notification of decision on visa application” which are annotated as being the matters that the notice must include set out in s.66(2) of the Act and which clearly correlates to the s.66 version sent to me.
The Applicant has sent me a copy of what is said to be reg.503 of the Regulations which appears to be of general application. That regulation according to the Applicant was held to be invalid by the majority of the Federal Court of the Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] 98 FCR 77.
I am not able immediately to decide which legislative versions forwarded to me is correct, but if the Respondent is correct and the legislation is as counsel submits, it would seem to me nonetheless that the address for correspondence nominated at CB 16 would still properly in my view ultimately fall within the terms of s.534 of the Act as it then was which are in these terms:
“An Applicant may tell the Minister that a specified person and specified address may be given notifications for the Applicant about the application.”
This aspect of the case is far from clear, as indeed is the construction of the legislation in its current form. I confess that, faced with competing assertions even as to what the form of the relevant legislation was at the time of the delegate’s decision in 1997, I am far from satisfied that I can come to any effective conclusion in respect of this aspect of this case.
Even assuming, contrary to the position contended for by the Respondent, that there was not an effective notification of the decision in 1997, the notification was plainly given again in 2005 when the letter of 14 September was sent to the Applicant. This raises squarely the consideration in the case of Zhan.
The decision of Allsop J in Zhan clearly arose from a different set of facts than those that obtain in this case. Nonetheless, it is apparent from his Honour's decision in Zhan at paragraphs [47] - [48] that his Honour approached the sort of issues with which the Court is here concerned in a robust way.
The reality is that the Respondent in this case was made relevantly aware of the Applicant's apparent ignorance of the earlier 1997 decision in 2005. He responded to that state of affairs by the letter dated 14 September 2005, which was clearly sent within three days of its date. The fact that the letter was accompanied by a set of reasons derived over 10 years earlier is, on the authority of Zhan, neither here nor there.
Even if this conclusion be wrong, both parties conceded through their counsel that the issue of prerogative writs in this circumstance was discretionary. I accept the submissions of the Respondent that the delay of over a year before the Applicant took any steps to invoke the jurisdiction of this Court is such that relief should be refused on discretionary grounds.
Further, I accept the submissions of the Respondent that prerogative relief may be withheld on discretionary grounds where other suitable remedies were available and had not been availed on. See NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 at [30] and the authorities therein referred to.
I am minded to accept the submission advanced at paragraph 21 of the Respondent’s contentions of fact and law that it is inappropriate for this Court to determine that time has not expired for an application to the Refugee Review Tribunal, until the Tribunal has had an opportunity itself to consider its own jurisdiction.
In all of these circumstances it follows that the application should be dismissed and the Applicant should pay the costs of the Respondent.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 24 May 2007
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