NAWW v Minister for Immigration - [2005] FMCA 1753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWW v MINISTER FOR IMMIGRATION

[2005] FMCA 1753

MIGRATION – Protection visa application – judicial review of the delegate’s decision – delegate’s decision previously affirmed by the Tribunal and its decision upheld in Federal Court and Federal Magistrates Court – discretionary reasons for refusing relief – application dismissed – directions that no further judicial review application be filed without leave of the Court.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth), ss.66(2), 66(4), 91X, 414, 415, 476(1), 476(6), 500
Judiciary Act 1903 (Cth), s.39B

NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 91
NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 261
SZGKR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1316
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
NAMG & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 221
SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2003] FMCA 541

Applicant:

NAWW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1789 of 2005

Delivered on:

30 November 2005

Delivered at:

Sydney

Hearing date:

15 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared via telephone link with the assistance of an Urdu interpreter.

Advocate for the Respondent:

Ms L Gazi

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The respondent’s Notice of Motion filed on 12 September 2005 is upheld.
The application for judicial review filed on 8 July 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of Mr Roger Gibson, File No: N02/44094) made on 1 September 2003 and handed down on 25 September 2003 or the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (of Mr John Maxwell-Owhochukwa) handed down on 6 August 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1789 of 2005

NAWW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Motion filed on 12 September 2005, the respondent moves the Court for orders that the proceedings be dismissed on the basis that:
a)the decision sought to be reviewed is not an operative decision affecting the rights of the applicant;
b)no reasonable cause of action is disclosed in relation to the proceedings (Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth));
c)the proceeding is an abuse of process of the Court (Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth)).
These proceedings were commenced by an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on

8 July 2005 for a review of the decision of the delegate of the respondent (“the delegate”) (the decision of John Maxwell-Owhochukwa, DIMIA File No: CLF2002/20319) made on 6 August 2002 to refuse to grant the applicant a protection (Class XA) visa.
For the purpose of this Notice of Motion, the respondent tendered and applied for the affidavit of Laura Gazi affirmed on 8 September 2005 to be admitted into evidence.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NAWW”.

Background

The applicant, who claims to be a citizen of India, arrived in Australia as a student on 8 March 2000 on an Indian passport. On 17 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 6 August 2002 the delegate refused to grant a protection visa and on 22 August 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (Tribunal decision p.2).
The applicant is an Indian Muslim from Hyderabad in India and was born in April 1977. He speaks, reads and writes Hindi and English. The applicant stated he has never married and was educated for

12 years from 1982 to 1994 at HSC St Anton School, gaining his HSC in 1994. His occupation and professional is indicated as “student”. The applicant claimed he resided at the same address in Hyderabad until leaving India in March 2000. He indicated that he had not been under investigation or convicted of any crime or offence. The applicant’s father, mother, two sisters and two brothers continue to reside in India (Tribunal decision p.4).
The applicant claimed he was a member of the Hyderabad Muslim Student Federation. He claimed his father died of the shock he received during a Hindu/Muslim riot in Hyderabad. The applicant stated that he had become a joint secretary of the Federation during his HSC year, delivering many speeches and becoming a target of the RSS, who kept him in illegal confinement. The applicant claimed that after a great deal of suffering and changing of many institutions he obtained a student visa to Australia and fled India in order to save his life. He stated that if he returns to India he shall again face torture and discrimination based on his faith and will be “done to death” (Tribunal decision p.5).

Litigation history

A convenient summary of the litigation history of this applicant was contained in the respondent’s written submissions prepared by Ms L Gazi and I adopt paragraphs 3-9 of those submissions for the purpose of this judgment:
[3]The applicant is a citizen of India who arrived in Australia on
8 March 2000 on a student (Class TU) visa. He lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“DIMIA”) on 17 April 2002. A delegate of the respondent refused the application in a decision dated 6 August 2002.
[4]With the assistance of a migration agent, the applicant applied to the Refugee Review Tribunal (“the Tribunal’) for review of the delegate’s decision on 19 August 2002. The application for review indicated that a written statement would be sent “if required”, but none was submitted to the Tribunal.
[5]The Tribunal’s decision was made on 1 September 2003 and handed down on 25 September 2003.
[6]On 17 October 2003, the applicant applied for review of the Tribunal’s decision in the Federal Court of Australia. On
9 February 2004, Justice Hely dismissed that application with costs.
[7]Over 12 months later, on 27 April 2005, the applicant then filed an application for review of the delegate’s decision in the Federal Magistrates Court.
[8]The respondent filed a Notice of Motion for summary dismissal of that application, which was heard before Federal Magistrate Raphael on 2 June 2005. In his decision, dated 2 June 2005, Federal Magistrate Raphael dismissed the substantive application and awarded costs to the respondent.
[9]On 8 July 2005, the applicant then filed an application, purportedly pursuant to the Administrative Decisions (Judicial Review) Act 1977, seeking review of the delegate’s decision.

Application for review of the delegate’s decision

On 8 July 2005 the applicant filed an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which contained the following grounds:
1.A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
2.The delegate who purported to make the decision did not have jurisdiction to give the decision.
3.The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4.The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.
5.This application is not vexatious nor and abuse of process. A delegate’s decision can be reviewed by the court under certain circumstances. The Court has previously reviewed decisions [by] the delegate in the matters of:
Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292
SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211
NAMG v Minister for Immigration (No. 1) [2003] FMCA 541
7.The applicant applied for judicial review to the Federal Magistrates Court and the learned Court recommended that the applicant makes an application under ADJR Act 1977.
8.More grounds will be provided later.

Submissions

Ms Gazi, Solicitor for the respondent, filed detailed written submissions supported by affidavit material which addressed the issues before the Court.
The applicant, who attended by telephone, failed to file any written submission despite being ordered to do so and when invited to make oral submissions in support of his case sought to have the matter further adjourned in order that he could prepare for the hearing. I will refer to this matter further in my reasons below.

Reasons

At the directions hearing before me on 30 August 2005 this matter was set down for an interlocutory hearing at 11.15 a.m. on 8 November 2005. Approximately one hour before the scheduled hearing the applicant contacted the Registry to advise that his car had broken down at Leeton on his journey from Griffith to Sydney for the hearing. In a further discussion between the applicant and my associate it was suggested that he could attend the hearing by telephone link. However, the applicant indicated he was broken down on the road side and was awaiting assistance to be towed to Griffith. At that time, a new hearing date was scheduled for 2.15 p.m. on 15 November 2005 and the applicant was advised that a letter confirming the hearing date and time would be sent to him by the Court. A letter was duly sent addressed to the applicant using the name indicated at the foot of the original application.
On 15 November 2005 at approximately one hour before the scheduled hearing the applicant again contacted my associate to advise that a letter had arrived at his Griffith premises but it was addressed to a person whose name was different from his. The applicant stated that he had just opened the letter and found that it referred to his hearing and that as a consequence of being located in Griffith he would not be able to attend the hearing. The applicant had been put on notice of the rescheduled hearing by telephone conversation with my associate on

30 August 2005. The applicant was advised that the hearing could take place by telephone link and that an interpreter would be present in the Court room to assist with any translation required. The alleged error in name was not explained and did not become apparent because of the use of the pseudonym order in the previous hearings. The Court letter was addressed to the name appearing on the bottom of the original application which is the same name recorded in the Court computer records system. The pleadings themselves were those commonly used by members of the Bangladeshi community and the name may have been incorrectly copied during the preparation of the document from some circulated precedent. Although the applicant did not appear in Court for the hearing, I do not believe he was in any way disadvantaged because the facilities of a very competent Urdu interpreter were available to assist. I also note that the applicant was competent in English and for the vast majority of the hearing English was used without the need of the Urdu interpreter.
The litigation history of this matter indicates the applicant has sought judicial review of the Tribunal’s decision on a number of previous occasions. There appears to be some recognition that this avenue has been explored and exhausted. As a result, the applicant appears to have commenced an alternative path of judicial review by challenging the delegate’s decision. This approach faces an immediate problem by operation of s.476(1) of the Act which states that despite any other law, neither the Federal Court nor the Federal Magistrates Court has jurisdiction in relation to a primary decision. In s.476(6) a primary decision is defined as a privative clause decision that is reviewable or has been reviewed under Part 5 or Part 6 or s.500 of the Act, or a decision that would have been reviewable if an application for review had been made within a specific period.
In these circumstances Part 7 of the Act is the relevant section and the Part covering review of protection visa decisions. I accept the respondent’s submission that the Tribunal’s decision has been reviewed by his Honour Hely J in the Federal Court (NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 91) and no jurisdictional error has been identified and therefore the Tribunal’s decision made on 1 September 2003 and handed down on 25 September 2003 (decision of Roger Gibson, Ref: N02/44094) is a privative clause decision.
With the apparent acceptance that a challenge to the decision of the Tribunal would not be successful, the applicant commenced new proceedings on 27 April 2005 (SYG1054/2005) in the Federal Magistrates Court seeking to challenge the decision of the delegate in a number of respects. These proceedings came before his Honour Raphael FM on 2 June 2005. The basis of the challenge to the delegate’s decision was based on s.66(4) of the Act being that the applicant had not been advised of the delegate’s decision in accordance with the provisions of the Act. Those proceedings did not succeed. However, comments made by his Honour in that decision (NAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 783) appear to be the genesis of the current application before this Court in the reference that the proper course in which to challenge the delegate’s decision would be under the Administrative Decisions (Judicial Review) Act 1977 (Cth) directly against the delegate. The applicant’s interpretation of the comments made by his Honour Raphael has consequently grown into a pleading in the current proceedings that expresses a recommendation that this course of judicial review should be pursued. Clearly, this was not the intention of the comment as it was heavily qualified that such an approach would be seriously hampered by the passage of time that had elapsed in the absence of any initiation of appropriate proceedings.
The operation and the limitation in respect of judicial review of the delegate’s decision in this matter have not been fully argued before this Court. However, there are substantial hurdles placed in the path of an applicant to succeed by adopting this approach.
In respect of abuse of process, I accept the respondent’s submission that the delegate’s decision has been reviewed on the merits by the Tribunal. The applicant has been provided with an opportunity to challenge the validity of the Tribunal’s decision and that was unsuccessful in his application to the Federal Court before his Honour Hely J.
The Full Court of the Federal Court decided in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs per Finn, Mansfield and Gyles JJ at [28] that the review by the Tribunal is available even though the decision maker at first instance may have made a decision which was legally ineffective. An invalid decision of the respondent is able to be reviewed by the Tribunal and the Tribunal is able to “cure the defect in the delegate’s decision. The applicant’s pursuit of a merits appeal to the Tribunal rendered legally irrelevant the validity of the delegate’s decision: SZGKR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs at [25].
The respondent argued that the application for judicial review was clearly an abuse of process for the following reasons:
a)the delay in filing the application, particularly in the absence of any explanation for the delay;
b)the previous unsuccessful attempt at judicial review of the delegate’s decision;
c)the lack of any particulars disclosing any arguable basis for the present application; and
d)the delegate’s decision is not affected by any error amounting to jurisdictional error.
I accept the submissions that the present proceedings constitute an abuse of the Court’s process.
In the application filed on 8 July 2005, there are eight grounds upon which the applicant seeks to review the delegate’s decision.
In Ground 1 the applicant claimed he was not notified of the delegate’s decision. A letter dated 6 August 2002 was sent to the applicant notifying him of the decision. There can be no doubt that it was posted and received by the applicant within whatever time limits were applicable for him to appeal to the Tribunal since, in fact, he did appeal within time. His application for review was lodged on 22 August 2002 and the jurisdiction was accepted by the Tribunal. The Tribunal then proceeded to perform its duty to review the delegate’s decision under s.414 of the Act and to make a final determination in relation to its review under s.415. Further s.66(4) of the Act states that failure to give notification of a decision does not affect the validity of the decision.
Nothing in the application to the Tribunal or in the Tribunal’s decision complains of non receipt of the delegate’s decision. The delegate’s decision was sent to the applicant at the address given by him in his protection visa application. A copy of the decision was also sent to the applicant’s authorised recipient at the address given in the “Authorisation for Person to Act and Receive Communications” form. The Department did not receive any notification of a change of address from either the applicant or his authorised recipient prior to the handing down of the delegate’s decision on 6 August 2002. Both the applicant’s own address and that of his authorised recipient remain the same in the application for review received by the Tribunal. Consequently, notification to the applicant of the delegate’s decision otherwise complies with s.66(2) of the Act and does not give rise to any ground of judicial error.
In respect of Ground 2, the applicant claimed that the delegate did not have jurisdiction to give the decision. This claim was without particulars and the allegation was without basis and cannot be sustained.
In respect of Ground 3, the applicant alleged that the delegate’s decision was “infected by error of law” and was “an improper exercise of the power conferred” by the Act. These claims were not particularised and cannot be sustained.
In Ground 4 the applicant acknowledged that the application in the current proceedings was “late”. The applicant then cited the decisions of Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (“Chan Ta Srey”) and Plaintiff S157/2002 v Commonwealth of Australia but did not indicate the principle that he was seeking to rely upon in these decisions.
Similarly, in Ground 5, the applicant stated that the application “is not vexatious nor an abuse of process”. Again the applicant cited the decision of Chan Ta Srey without identifying the principle upon which he relies in that decision. I accept the respondent’s submission that the relevance of this case to the operation of s.66(2)(d)(ii) of the Act is not apparent. The applicant also relied on the decision of his Honour Driver FM in NAMG & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (“NAMG”) and SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) (“SZCTH”) without specifying how these decisions are authority for any ground of review that the applicant was seeking to establish. In NAMG no review application was filed. In SZCTH the Court noted that the application for judicial review was filed out of time and that the Tribunal had no jurisdiction to consider it. The respondent correctly submitted that both decisions merely reinforced the well established proposition that this Court does not have jurisdiction to review a primary decision that is a privative clause decision. The applicant has not established that the delegate’s decision has been infected by jurisdictional error.

There is no Ground 6 contained in the application. In Ground 7, contrary to the statement set out in this paragraph, his Honour Raphael FM did not “recommend” to the applicant to seek review of the delegate’s decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). This matter is discussed above.
Ground 8 was a commonly seen and formulaic assertion that “more grounds will be provided later”.

Conclusion

I consider there is no merit in the applicant’s current challenge to the delegate’s decision and it is an attempt to use the processes of the Court as an abuse by the current application seeking to raise the validity of the delegate’s decision at this stage in the litigation history of this matter. I uphold the respondent’s Notice of Motion filed on

12 September 2005. Consequently, the applicant’s application dated

8 July 2005 seeking a review of the delegate’s decision of 6 August 2002 is dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan Date: 30 November 2005