NBIF & Anor v Minister for Immigration & Anor
[2007] FMCA 1097
•13 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1097 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa. PRACTICE & PROCEDURE – Show cause hearing – jurisdiction – whether application out of time – whether applicants notified of the Tribunal decision – applicants bound by the date stated in their application and supporting affidavit – where applicants appealed to Full Court of the Federal Court against earlier decision of the Federal Magistrates Court – where applicants’ appeal successful – where applicants sought special leave to appeal to the High Court of Australia against consent orders in their favour – unfavourable outcome – application for special leave to appeal to High Court against decision of the Full Court not to be interpreted as an application to the Federal Magistrates Court for review of a decision of the Refugee Review Tribunal for the purposes of Migration Act 1958 (Cth) s.477 – application for review incompetent. |
| Migration Act 1958 (Cth) ss.91X, 430B, 476, 477 |
| NBIF & Anor v Minister for Immigration & Anor [2005] FMCA 1305 NBIF & Anor v Minister for Immigration & Anor [2006] FMCA 182 |
| First Applicant: | NBIF |
| Second Applicant: | NBIG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1740 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 July 2007 |
| Date of Last Submission: | 5 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2007 |
REPRESENTATION
| Applicants: | In person |
| Solicitor for the Respondent: | Ms Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed as incompetent as the Court has no jurisdiction to hear the application.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1740 of 2007
| NBIF |
First Applicant
| NBIG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is a show cause application. The two Applicants have commenced an application for review of a decision of the Refugee Review Tribunal signed on 5th September 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicants Protection (Class XA) visas.
The substantive application is said to be an application for leave to appeal from a decision of the Refugee Review Tribunal made and handed down on 5th September 2006. The date when notification of the decision was received by the Applicant is given as “5 September 2006”. In the application, the Applicants also apply for an order that the time for making the application be extended under s.477 of the Migration Act 1958.
The First Respondent, in a Response filed on 28th June 2007, opposes the application on the basis that the Federal Magistrates Court does not have jurisdiction. The grounds relied upon, which I have paraphrased, are these:
a)On 5th September 2006 the Second Respondent, the Refugee Review Tribunal, made a decision relating to the Applicants.
b)On 5th September 2006 the decision was handed down pursuant to section 430B of the Migration Act.
c)The Applicants stated that they received notification of the decision on 5th September 2006.
d)Pursuant to section 477(1) of the Act an application to the Court under section 476 in relation to a migration decision must be made to the Court within 28 days of actual notification of the decision.
e)Pursuant to s.477(2) of the Act, the Court may, by order, extend the 28 day period by up to 56 days if:
i)an application for that order is made within 84 days of the actual notification of the decision; and
ii)the Court is satisfied that it is in the interests of justice to do so.
f)As the Applicants were notified of the decision on 5th September 2006, the Applicants had until 3rd October 2006 to make an application to the Court.
g)On 4th June 2007 the Applicants applied to the Court for review of the decision, which is outside the 84 day period following actual notification of the decision.
h)Therefore, the Court does not have jurisdiction under s.476 of the Act.
Background
The Applicants are, or appear to have been, husband and wife. The First Applicant is in immigration detention at Villawood.
The solicitor appearing for the Minister, Ms Burnett, has prepared a chronology of events, which contains a useful summary of the relevant history of this matter. I propose to adopt it, not in full but in all relevant respects.
On 28th May 1999 the First Applicant and the Second applied for a protection visa. Their application for a visa was refused by a delegate of the Minister on 21st June 1999.
On 16th July 1999 the Applicants applied to the Refugee Review Tribunal for a review of the delegate’s decision. On 1st August 2000 the Tribunal affirmed the delegate’s decision.
On 19th December 2003 the Applicants applied for judicial review of the Tribunal’s decision and on 24th March 2004 their application for review was remitted by consent to the Refugee Review Tribunal for reconsideration.
On 24th June 2004 the Tribunal, differently constituted, affirmed the delegate’s decision.
On 9th July 2004 the Applicants filed an application for judicial review in the Federal Court in respect of the second Tribunal decision. On
2 August 2004 the Federal Court transferred the proceedings to the Federal Magistrates Court for determination.
The application for judicial review was decided by Nicholls FM on
16 November 2005. His Honour dismissed the application (NBIF & Anor v Minister for Immigration & Anor [2005] FMCA 1305). In a separate decision on 10th February 2006, Nicholls FM ordered that the Applicants should pay the First Respondent’s costs (NBIF & Anor v Minister for Immigration & Anor [2006] FMCA 182).
On 5th December 2005, the Applicants filed an appeal to the Full Court of the Federal Court from the decision of Nicholls FM. On 15th June 2006 Allsop J made the following orders by consent:
1. The appeal be allowed.
2. The orders made by the Federal Magistrates Court on 16 November 2005 and 10 February 2006 be set aside, and in lieu thereof, the Court orders that:
a) there be an order in the nature of a writ of certiorari, quashing the decision of the Second Respondent dated 24 June 2004 (Ref; N04/48932) affirming a decision of the delegate of the First Respondent dated 16 June 1999;
b) there be an order in the nature of a writ of mandamus, requiring the Second Respondent to determine the Applicant’s claims according to law;
c) there be no order as to costs in the appeal.
As a result of the appeal, the second Tribunal decision was remitted to the Tribunal for reconsideration.
On 5th September 2006 the Tribunal affirmed the decision of the delegate.
On 14th September 2006 the Applicants applied for special leave to appeal to the High Court of Australia against the orders made by Allsop J on 15th June 2006.
On 24th May 2007 Hayne and Crennan JJ in the High Court dismissed the application for special leave to appeal.
On 4th June 2007 the Applicants filed an application in this Court seeking judicial review of the Tribunal decision of 5th September 2006.
Application to the Federal Magistrates Court
The Applicants attended Court on the hearing of this matter on 5th July 2007. The First Applicant was brought to Court from the Immigration Detention Centre. Neither Applicant was legally represented. They were assisted by an interpreter in the Mandarin language.
The First Applicant submitted that they had done everything “according to the time frame”. He said that the decision of the Refugee Review Tribunal was made on 5th September 2006 and on
14 September 2006 they lodged their application for leave to appeal to the High Court of Australia. He said that there were only 9 days from 5th September to 14th September.
The High Court of Australia dismissed the application for special leave to appeal on 24th May 2007, although the First Applicant claimed the application was dismissed on 25th May. Nothing turns on this point.
The First Applicant said that about 8 months and 11 days passed whilst the High Court was dealing with their case. On 4th June they filed their application for judicial review in this Court. The First Applicant claimed that between 25th May and 4th June only 10 days had passed. He also submitted that when they lodged their application to the High Court they mentioned the decision of the Refugee Review Tribunal decision and there was no possibility of their lodging “two appeals at the same time”.
The First Applicant went on to explain why the Applicants sought special leave to appeal to the High Court. He claimed that as at the
15 June 2006 the decision of the Allsop J had not been “fully made” because:
a)on 15th June 2006 the Federal Court revisited the consent orders made between the Minister’s lawyers and the Applicants without giving them any chance to speak to the Court and so they had no opportunity to explain;
b)when the hearing was concluded the court orders were revised in accordance with a memorandum of consent orders signed by the parties and filed on 31st May 2006; and
c)the Applicants sought different orders.
The Second Applicant then sought to make a submission. She told the Court that the Applicants had never been given a copy of the Tribunal decision of 5th September 2006.
As this was the first indication that the Applicants were denying that they had been notified of the Tribunal decision, either on 5th September 2006 or at all, I required them to give oral evidence of that claim.
The Second Applicant gave evidence with the assistance of the interpreter. Her evidence was that her signature in Chinese characters appeared on the Application filed on 4th June 2007. She also identified her signature (in English characters) as the deponent to the deponent to the affidavit filed in support of the Application on 4th June 2007. That affidavit bears this declaration:
Affirmed through the interpretation of Bruce Bian, Solicitor of City Law Ste 503, Level 5, 541 Kent Street, Sydney NSW 2000, he having first sworn/affirmed that he/she had truly interpreted the contents of this affidavit and the oath/affirmation to NBIG.[1]
[1] Applicant’s name replaced by pseudonym to comply with Migration Act 1958 (Cth) s.91X
I am satisfied that Mr Bian is not the solicitor on the record for the Applicants. He does not indicate that he either drafted or settled the affidavit for the Applicants.
The Second Applicant told the court that Court that she knew the contents of the affidavit. When asked from the Bench about the copy of the Tribunal decision marked as Annexure A to her affidavit, she said that she only saw the document for the first time some unspecified before she filed the application for review at this Court. She said that she got the copy of the decision form the First Applicant some time before 4th June 2007. when pressed, she told the Court that she got it about two weeks previously. She went to say that she only received the decision from the First Applicant, not from the Refugee Review Tribunal, she had no idea when.
In cross-examination, the Second Applicant said that she believed that the consent orders made by Allsop J did not help her case and said that, to her, it was not “a formal decision”. She reiterated her denial of having been notified on 5th September 2006.
The First Applicant gave evidence under affirmation with the assistance of the interpreter. When shown the application, he said that he entrusted the Second Applicant to make the application to the Court because he was detained in the Immigration Detention Centre.
The First Applicant said that he could not recall the exact date when he received the copy of the Tribunal decision, but it was some time after 5th September 2006. When asked by the Court why he had waited until 4th June 2007 to apply for review of the Tribunal decision, the First Applicant said that when he lodged his application for leave to appeal to the High Court, the proceedings in the Federal Court had not concluded. To him, the decision of the Refugee Review Tribunal was not valid until the Federal Court proceedings were complete. He said that the Second Applicant had tried to appeal to the High Court on
12 September 2006 but was not able to file the application for special leave until 14th September. In answer to a question from the Bench, the First Applicant said that he must have had the Tribunal decision by
12 September. He said that he gave the document to the Second Applicant and asked her to prepare all the proceedings.
For the Minister, Ms Burnett submitted that there was evidence from the First Applicant that he had received the Tribunal decision before the 12th September 2006, and that the Court had no jurisdiction to review the Tribunal decision because the application is out of time. She submitted that it was clear that both Applicants were notified of the decision prior to 12th September 2006. In the alternative, Ms Burnett submitted that the date in the application bound the First Applicant to the date of notification mentioned in it.
The First Applicant said in his submission that he only gave the copy of the Tribunal decision to the Second Applicant after their application for leave to appeal was dismissed by the High Court because he wanted her to prepare the proceedings in this Court. He had never accepted or acknowledged the validity of the decision of the Refugee Review Tribunal.
The Second Applicant denied that she had received the Tribunal decision on 5th September 2006. She repeated her claim that she only received a copy of the decision from the First Applicant on some date before 4th June 2007.
Conclusions
Clearly, the date when the Applicants were actually of the Tribunal decision is crucial to their case. An application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court’s original jurisdiction under section 476 in relation to a migration decision must be made to the Court within 28 days of the actual notification (Migration Act s.477(1)).
The Court may only extend that 28 day period by up to 56 days if an application for an order is made within 84 days of the actual notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to do so (Migration Act s.477(2)).
There was no evidence brought by the Minister as to the actual notification of the decision, but it is fair to say that there was no challenge to the date of notification until part-way through the hearing before me. Until then, the Applicants had claimed in their application that they were notified on 5th September 2006. No adjournment was sought to provide such evidence.
I was not satisfied that the Second Applicant was a credible witness. She only sought to challenge the date of notification during the hearing, after it became clear that the date was an important issue. Her claim that she only received a copy of the Tribunal decision shortly before the decision was made to seek judicial review in the Federal Magistrates Court is eminently implausible.
The Second Applicant’s evidence was contradicted by the evidence of the First Applicant, who agreed that he must have received the Tribunal decision on some occasion between 5th September and 12th September, when the application was made to the High Court for special leave to appeal. The First Applicant sought to resile from that position in his submission at the conclusion of the hearing, but I prefer his evidence on affirmation to his attempt to give evidence from the Bar table.
The very timing of the application for special leave to appeal points to the very implausibility of the Applicants’ claims. The consent orders were made by Allsop J on 15th June 2006, but the Applicants did not seek special leave to appeal to the High Court until 14th September 2006, after the Tribunal had affirmed the delegate’s decision on
5th September 2006. If the Applicants were dissatisfied with the orders made by consent by Allsop J on 15th June 2006, it seems strange that they did not choose to seek special leave to appeal immediately, rather than waiting until after the Tribunal decision.The evidence of the Applicants appears to me to be implausible and opportunistic and I do not believe their evidence on the date of notification.
The Applicants claim that the Second Applicant prepared the application to this court with the consent and under the direction of the First Applicant. The Second Applicant signed the application and deposed to the affidavit, and confirmed to the Court that she knew what was in the documents. The application specifically states that the date when notification was received by the Applicant/s was 5th September 2006 and the Applicants applied for an order that the time for making the application be extended under section 477 of the Migration Act. If, as they claim, they were not notified on 5th September 2006 but only a few weeks earlier, why was there a need to apply for an extension of time?
The Second Applicant’s affidavit states:
I am applying for leave to appeal from the judgment of Refugee Review Tribunal given by Tribunal Member Luke hardy on 5 September 2006 at Sydney.
In my view, the Applicants are bound by their application, by the Second Applicant’s affidavit and the evidence of the First Applicant. I am satisfied that there is evidence that the Applicants were notified of the Tribunal decision on a date between 5th and 12th September 2006.
That being the case, time runs from, at the latest, 12th September 2006. The application was not made within 28 days of that date, or within a further 56 days. Except as provided by s.477(2), the Court must not make an order allowing, or which has the effect of allowing, an application to be made outside that 28 day period. Even if s.477(2) applies, the Court can only make an order extend that 28 day period by another 56 days. That time expired on 5th December 2006. The application for review was not filed until 4th June 2007. It is out of time.
The Applicants’ submissions that they complied with the time frame in the Migration Act, as expressed by the First Applicant, are quite specious and utterly misconceived. For the sake of completeness, I will deal with them in order.
The Applicants claim that only 9 days elapsed between the Tribunal decision on 5th September 2006 and their application for special leave on 14th September 2006. That may be so, but s.477 deals with an application to the Federal Magistrates Court for a remedy in relation to a migration matter. An application for special leave to appeal to the High Court of Australia against a consent order made by the Full Court of the Federal Court can not by the wildest stretch of the imagination be interpreted as an application to the Federal Magistrates Court for review of a decision of the Refugee Review Tribunal.
The time spent by the High Court in dealing with the application for special leave does not act as any sort of stay on the operation of s.477 of the Migration Act.
The application for special leave to the High Court did not act as a stay on the operation of the orders made by consent in the Federal Court.
Contrary to the Applicants’ submission, it was quite possible for them to have sought special leave to appeal to the High Court at the same time, but in different proceedings, as they sought judicial review of the decision of the Refugee Review Tribunal.
The decision of the Refugee Review Tribunal was in no way invalid. The application for leave to appeal, misconceived though it clearly was, was not made until after the Tribunal had made its determination in compliance with the orders made by Allsop J on 15th June 2006. The Federal Court proceedings had come to an end at the time when the Tribunal determined the application for review of the delegate’s decision.
The fact that the request to the Full Court of the Federal Court to make orders by consent varied in appearance from the orders actually issued by the Court, in that there were no handwritten alterations, did not in any way affect the validity of the orders that the Court made.
Contrary to the claims made by the First Applicant at the hearing before me, the application for special leave to the High Court made no mention whatsoever of the decision of the Refugee Review Tribunal of 5th September 2006, or any decision of the Tribunal.
The application for special leave had no chance of success whatsoever. With respect to their Honours, the High Court would have had little difficulty in deciding not to make any of the following orders:
· That the First Respondent and the Second Respondent admit that they have persecuted the First Applicant by detaining him in immigration detention for four and a half years.
· That the First Applicant be released from detention.
· That both the First and Second applicants be granted protection visa, as agreed in the original Consent Order.[2]
· That the First and/or the Second Respondent pay the First and Second applicants due financial compensation as a result of their errors in the past seven and a half years.
[2] No order to that effect was ever in evidence in these proceedings.
The consent orders made by Allsop J on 15th June 2006 meant that the Applicants had been successful in their appeal. It is unusual for successful parties in litigation to appeal against the very decision that gave them victory and, as can be seen in this case, a course that is unlikely to benefit the appellants.
The application for review of the decision of the Refugee Review Tribunal is incompetent because it is out of time. The Court has no jurisdiction to hear the application due to the operation of s.477(3) of the Migration Act. The application will be dismissed with costs.
The application will be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 12 July 2007
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