MZZCU v Minister for Immigration

[2013] FCCA 1060

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1060

Catchwords:
MIGRATION – Application to reinstate application dismissed for failure to appear – reasonable explanation for failure to appear – substantive application bound to fail.

Legislation:  
Migration Act 1958 (Cth), s.412(1)(a)

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

Applicant: MZZCU

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1470 of 2012

Judgment of: Judge Whelan

Hearing date: 2 August 2013

Date of Last Submission: 2 August 2013

Delivered at: Melbourne

Delivered on: 2 August 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application in a Case filed by the Applicant on 23 May 2013 be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $2,658.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1470 of 2012

MZZCU

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an Application in a Case to reinstate an Application for judicial review dismissed by Judge Riethmuller on 23 May 2013.

   
   

   Judge Riethmuller dismissed the Application on the basis that the Applicant had failed to appear. The Applicant in these proceedings says that he did attend the Court on that day but went to the wrong floor, and by the time he got to the right place the Application had already been dismissed. The First Respondent accepts that the Applicant did attend the Court on the day in question. The First Respondent indicated that there was some confusion about which courtroom the matter would be heard in, and noted that the Applicant made this Application in a Case on the same day. I therefore accept that there was a reasonable explanation for the Applicant’s failure to appear.

2. The First Respondent, however, opposed the Application being reinstated on the basis that it is bound to fail. The First Respondent has set out in written submissions the matters for determination by the Court in this matter. Those are:

   (a)whether the requirement for an application to be made to the Tribunal in the approved form, as required by s.412(1)(a) of the Act, is a factual precondition upon which the Tribunal’s jurisdiction depends; and

   (b)if the answer to (a) is ‘yes’, whether the application lodged by the Applicant with the Tribunal on 14 August 2012 was in the approved form as required by s.412(1)(a).[1]

   [1] ‘Outline of the First Respondent’s Submissions’ filed on 14 May 2013, page 1, at paras. 3(a) and (b).

3. It is not contested that the Application lodged by the Applicant on

   
   

   14 August 2012 was made on the Form R1 (March 2005), neither is it contested that on 6 January 2012, the Principal Member of the Tribunal acting under delegation from the Minister approved a new version of the Form R1 to take effect from 1 January 2012, with a proviso that the applications made on the superseded Form R1 could continue to be accepted as valid applications until 30 June 2012. On 23 May 2012, the Principal Member approved a new version of Form R1 to take effect from 4 June 2012, and all previous versions of the form ceased to be valid from 1 July 2012.

4. The Applicant appears to base his arguments on the following:

   ·he completed the form without assistance, and it was a mistake that he used the wrong form;

   ·it was hard for him to distinguish between the forms as they were both called Form R1 and he provided all the relevant information on the form;

   ·the time difference was short between when the Form R1 for 2005 could be used and when he lodged his Application; and

   ·in the interest of natural justice his Application should have been considered as valid.

5. The First Respondent referred the Court to relevant decisions on:

   ·the power of Parliament to dictate any fact or circumstance as a precondition to the valid exercise of power by a decision-maker;[2]

   ·the task of determining if Parliament intended that a particular fact or circumstance is a ‘judicial fact’;[3] and

   ·the approach of the Court in determining if a requirement to make an application on a specific form is a jurisdictional fact for the purposes of the Tribunal being empowered to deal with the application.

   [2] Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391.

   [3] Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 44.

6. The First Respondent in particular referred to the decision of the

   
   

   Full Court of the Federal Court in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, and in particular the Court’s attention was drawn to the following paragraphs, and I quote:

   [26] Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specific form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.[4]

   [4] [2012] FCAFC 27 at 26.

7. The Justices went on to say later at paragraph 34:

   [34] A failure to use “the approved form”, such as occurred when the applicant lodged form M2, was a failure properly to make an application to the Tribunal within the meaning of [the Act][5]

   and therefore the jurisdiction of the Tribunal was not invoked.

   [5] Ibid, at 34.

8. At the time that he submitted his Application, the form used by the Applicant was not the approved Form. Section 412(1)(a) of the Migration Act 1958 (Cth) (“the Act”) provides a precondition for the Tribunal to exercise any power to review a decision by a delegate of the Minister, is that the application for review be on the approved form. The form used by the Applicant did not have that status. Either the approved form was submitted or it was not. The Tribunal had no capacity to treat the form used as if it was an approved form. It had no discretion in the matter. The Tribunal could only deal with a valid application. As the application could only be valid if it was made on the approved form, the Tribunal had no jurisdiction to deal with the Application.

9. There was no discretion to be exercised; the Tribunal was bound by the statute to dismiss the Application as incompetent. I am satisfied that the originating Application in this matter is therefore bound to fail, and for that reason the Application in a Case to reinstate the originating Application must be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate: 

Date: 9 August 2013