MZXPI v Minister for Immigration and Citizenship
[2008] FMCA 1296
•15 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1296 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant failing to disclose earlier judicial review proceedings in show cause application – non compliance with s.486D of the Migration Act 1958 (Cth) – application incompetent and incurable. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.477, 486D Migration Litigation Reform Act 2005 (Cth) |
| MZXPI v Minister for Immigration & Anor (2007) FMCA 1560 MZXPI v Minister for Immigration & Anor [2008] HCASL 424 |
| Applicant: | MZXPI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2209 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 15 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
No further application by this applicant to review the decision of the Refugee Review Tribunal signed on 17 January 2007 and handed down on 7 February 2007 or any other application to review a migration decision relating to the applicant’s protection visa application made on 20 June 2006 be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2209 of 2008
| MZXPI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 26 August 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 February 2007. The decision had been signed on 17 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant, who is from India, arrived in Australia on 7 June 2006. He applied for a protection visa on 20 June 2006. That application was refused by a delegate on 31 August 2006. The applicant sought review of that decision by the Tribunal on 2 October 2006.
The applicant claimed persecution in India because of his political opinion and his race and also, it appears, as a Muslim. The applicant was invited to attend a hearing before the Tribunal and did so. The Tribunal questioned the applicant at length about his claims.
On 11 December 2006 the Tribunal wrote to the applicant seeking comment on adverse information that appeared to be to the Tribunal a reason for affirming the delegate's decision. The applicant did not respond. In its decision the Tribunal had regard to independent country information as well as the information provided by the applicant. The Tribunal found the applicant's evidence about his political involvement to be vague and unconvincing. He did not demonstrate a significant level of political knowledge. The Tribunal was also troubled about factual inconsistencies in his claims. In the result, the applicant was not believed.
The show cause application asserts errors in "the Court below", and also asserts that the Tribunal applied the wrong test. The applicant asserts that he was notified of the Tribunal decision on 7 February 2007, and seeks an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). If the applicant had been actually notified of the Tribunal decision on the date asserted it would not be possible for the Court to grant an extension of time. That is because more than 84 days would have elapsed since the date of notification.
However, there is a more fundamental problem with the application. The application form completed by the applicant in typewritten form includes a section concerning “other Court proceedings”. Under the heading “other Court Proceedings” there is an instruction in square brackets:
This section must be completed if the applicant has made a previous application or application to a court to review the decision - see section 486D of the Migration Act 1958.
Under the words "person or persons who made each application" the applicant has entered his name. Under the words "Court or Courts to which each application was made" there is a series of dots and that part of the form is otherwise left blank.
The application is supported by an affidavit in which the applicant makes factual and legal assertions and annexes a copy of the Tribunal decision.
The Minister filed a response to the application on 2 September 2008. That response includes objections based on rule 44.06(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) and assertions that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim, that the proceeding or claim is frivolous or vexatious and that the proceeding or claim is an abuse of the Court's process. The Minister's response identifies earlier judicial review proceedings in this Court, the Federal Court, and the High Court in respect of the Tribunal decision.
The facts are that the applicant has previously sought judicial review of the Tribunal decision in this Court. That application was made in the Melbourne Registry of the Court and dealt with by Federal Magistrate Reithmuller. The application was dismissed on 9 August 2007[1].
[1] MZXPI v Minister for Immigration & Anor (2007) FMCA 1560
The applicant appealed to the Federal Court. That application was dismissed by Finkelstein J, but his Honour directed that the order not be entered for one month to enable the appellant to get legal advice and, if appropriate, to apply to vacate the dismissal order for the purpose of having the appeal re-heard. That application was made and the applicant was represented at the re-hearing by counsel. The applicant advanced an argument before the Federal Court which he attempted to advance before me today; namely that the Tribunal had failed to provide him with an opportunity to supply additional information. After hearing the arguments Finkelstein J declined to vacate his earlier order[2]. At [11] his Honour found that the Tribunal had not fallen into any error.
[2] MZXPI v Minister for Immigration [2008] FCA 635
The applicant sought special leave to appeal to the High Court. On 6 August 2008 Justices Hayne and Crennan refused that application[3]. At [2] their Honours noted that the applicant would seek to argue in the High Court that the Tribunal did not give him a sufficient opportunity to provide certain information to it and that he was thereby denied procedural fairness. Their Honours stated that the argument was rightly rejected by the Federal Court and that an appeal to the High Court would enjoy no prospect of success.
[3] MZXPI v Minister for Immigration & Anor [2008] HCASL 424
The applicant conceded from the bar table that the record of the earlier legal proceedings is accurate. He said that he had made a mistake in completing the show cause application. He suggested that the present application was made without assistance. I note, however, that the application appears to have been carefully prepared and is supported by an affidavit that suggests the involvement of someone with some legal knowledge.
Section 486D of the Migration Act provides, relevantly, that:
(1)A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
I am satisfied that this applicant has not complied with s.486D(1) in bringing the present application. The section was considered in this Court in SZKUT v Minister for Immigration & Anor [2008] FMCA 241. Federal Magistrate Smith found that an application brought in breach of s.486D would be incompetent. I agree with his Honour's observations on the interpretation of the section at [12] to [15] of his judgment:
The legal question which arises is whether this defect renders incompetent the proceeding which has been commenced, in the sense that the Court has no jurisdiction to determine the merits of the claims made in the application. Did Parliament intend to make the disclosure required by s.486D a condition of the statutory jurisdiction of this Court, comparable to the effect of a time limit under s.477 which was upheld in SZICV by the Full Court?
Two of my colleagues have indicated an opinion that it does (see S354 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 1929 at [88] and SZLHJ v Minister for Immigration & Anor [2007] FMCA 1947 at [9] and [10]). I am not persuaded that their opinions are incorrect, and would respectfully follow their opinion. In both cases, in my opinion, it provided part of the ratio decidendi of the judgment, although in each of them the Federal Magistrate also found other reasons for dismissing the application.
In my opinion, the jurisdictional nature of s.486D emerges from the language and the context of the section, and from the purpose of the amending legislation which inserted it. As is revealed in the explanatory memoranda accompanying the Migration Litigation Reform Act 2005 (Cth), the new provisions in Pt.8A of the Act attempted to meet a problem faced by the Courts arising from the repeated bringing of judicial review proceedings. Section 486D was intended to require applicants to be candid with the Court in that respect, at the time when they initiated their new proceeding. The injunction in s.486D(1): “a person must not commence …”, is in my opinion to the same effect as the opening language of s.477: “an application … must be made to the court within 28 days …”. Both appear to be intended to condition this Court’s jurisdiction. As with s.477, s.486D provides no expressed sanction for a failure to comply, and this also suggests that compliance was intended to be a matter going to the competency of the application.
In my opinion, the present application should be dismissed as incompetent if I am satisfied that the previous proceeding which was dismissed by Hely J was one which was “already brought by the person”, being the present applicant. In this respect, I accept these words should be construed strictly, so as to require the Court to be satisfied that the earlier proceeding was brought by or on behalf of the person bringing the second application with that person’s approval and authority.
His Honour also found at [11] that once breached, the difficulty could not be overcome by an amended application:
In my opinion, however, the filing of an amended application containing the required disclosure could not satisfy the requirements of s.486D(1), even taking into account the retrospective effects of an amendment under normal principles of Court procedure. This is because the required disclosure is expressly directed to be made at a particular point in time, being the time “when commencing the proceeding”. The requirement as to the content of the initiating document therefore, in my opinion, has the same incurable character as I found in s.477(2) in relation to an application for extension of time (see SZICV v Minister for Immigration & Anor (2006) 202 FLR 200). My opinions in this respect were upheld in the Full Court by all Justices, notwithstanding that there was a difference of opinion as to the construction of the original application in that case (see SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260, [2007] FCAFC 39). Prima facie, therefore, the present application was not permitted to be commenced by s.486D(1), and the Court’s powers are unavailable to cure the defect in the original application.
I agree. There is no doubt that the section has been breached by the applicant in this present application. He has freely acknowledged his mistake. The consequence is that his present application is incompetent and must be dismissed.
The applicant asked whether he could make a further application. Such a further application should not be permitted without leave. The applicant, by his statements from the bar table, indicated that he wanted to advance an argument that the High Court has already found was doomed to fail. It was at least arguable that the decisions of this Court, the Federal Court, and the High Court already establish conclusively that the Tribunal decision is a privative clause decision. Further, the bringing of repeated applications in the courts in an attempt to re‑agitate issues that have already been decided, or could have been, abuses this Court's process.
I will order that the application is dismissed as incompetent.
I will also order that no further application by this applicant to review the Tribunal decision signed on 17 January 2007 and handed down on 7 February 2007, or to review any other migration decision relating to the applicant’s protection visa application made on 20 June 2006, be accepted for filing in this Court, except by leave of a Federal Magistrate.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $500. Scale costs would be $1,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 September 2008
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