S328 of 2003 v Minister for Immigration
[2006] FMCA 869
•10 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S328 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 869 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – no jurisdiction to review primary decision – applicant seeks extension of time for delay of 81 days form notification of Refugee Review Tribunal decision – delay – application no reasonable prospects of success – respondent seeks summary dismissal for abuse of process – prior proceedings in Federal Court of Australia. |
| Migration Act 1958 (Cth), ss.476; 477; 477(2) Migration Litigation Reform Act 2005 (Cth), sch. 1 cl. 42 |
| Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1353 Applicant S328 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1734 Applicant S328 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 103 |
| Applicant: | APPLICANT S328 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG527 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 May 2006 |
| Date of last submission: | 10 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
ORDERS
The application filed by the Applicant on 20 February 2006 is incompetent and is otherwise dismissed.
That the Applicant pay the First Respondent's cost in an amount of $2800.
Note that the Registry should not accept for filing without leave of the Court any further application for review of:
(a)the decision of the second respondent Refugee Review Tribunal made on 21 June 2000 and handed down on 6 July 2000, reference N99/26386;
(b)
the decision of the delegate of the first respondent dated
22 December 1998; or
(c)any notification of either the Refugee Review Tribunal or delegate’s decisions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG527 of 2006
| APPLICANT S328 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By notice of motion filed on 20 March 2006, the first respondent seeks an order that the application filed by the applicant in this Court on 20 February 2006 be dismissed.
The first respondent proceeds with her application on two bases. First the application upon which the applicant seeks review of the decision of the primary decision maker made on 22 December 1998, and that, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), this Court has no power to review such a decision. I refer to s.476 in its entirety, including the definition of "primary decision", as follows:
“(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
“primary decision” means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
If the application seeks review only of the primary decision maker's decision, then s.476 of the Act states that this Court has no jurisdiction in respect of such a decision.
In order to decide if the application filed is in respect of the primary decision, it is relevant to consider the nature of the application. The application in the form in which it is completed by the applicant has the following text completed by the applicant. In answer to the question:
“If a Tribunal made the decision, name the Tribunal:”
The Applicant has written:
“Refugee Review Tribunal”
In answer to the question:
“If the Minister or a delegate made the decision, name the decision-maker and his or her office:”
The applicant has identified:
“Keith Dixon SIMIA, Sydney CBD Office”
In respect of the date of the decision, the Applicant wrote:
“22-12-1998”
The applicant has identified the decision of the primary decision maker.
In answer to the question of the date when notification was received by the applicant, the applicant has written:
“28-12-1998”
which refers to the letter from the primary decision maker to the applicant informing him of the decision.
In respect of the grounds of the application, ground 2 relates solely to the decision of the primary decision maker and ground 3 refers only to the delegate. The grounds of the application are as follows:
“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 the 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 gave [sic] the decision. The minister does not have a power to take this decision into effect. S66(1) and s66(2) of the Migration Act 1958 was not observed.
3. The decision was infected by the error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purpore [sic] to be made.
4. The Application is late. However the Applicant refers to Chan Ta Svey v MIMIA (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 be the delegate in the matters of: Chan To Svey v MIMIA (2003) FCA 1292
SZCTH V MIMIA (No.1) (2004) FMCA 24
NAMG v MIMIA (No. 1) (2003) FMCA 541
ALAM v MIMIA (2005) FCAFC 132”
Grounds 4 and 5 would appear to relate to issues only relevant to the delegate's decision, being the primary decision maker.
However, grounds 1 and 3 are grounds of general assertion that possibly may have been applicable to either the Tribunal decision or to the primary decision decision.
It is possible that the applicant was intending to seek review of both the primary decision and the Tribunal's decision. As I have already stated, to the extent that the applicant seeks review of the delegate's decision, this Court has no jurisdiction to entertain such an application.
However the applicant has referred to the Refuge Review Tribunal identified on the application filed on 20 February 2006. The applicant has also answered in a further question to the decision, referring to the primary decision maker.
It is perhaps unfortunate that the application form invites the completion to the uninformed of providing answers that may convey the impression that an applicant is seeking a review of a decision of both the Tribunal and the delegate. Moreover, when one has regard to the grounds sought, whilst 3 of the grounds relate specifically to the delegate's decision, 2 are capable of being entertained as a review of the Tribunal decision.
Where the consequence of a decision by me that the application seeks review only of the delegate's decision results in this Court having no jurisdiction, it is my view that the interests of justice demand that the applicant be given the benefit of the doubt. This is particularly so where, to some extent, it is the form itself that promotes a lack of clarity in respect of exactly which decision the applicant is seeking this Court to review.
For those reasons, I shall proceed to consider the first respondent's application for summary dismissal on the basis that the applicant’s application in respect of grounds 1 and 3 seek a review of the decision of the Refuge Review Tribunal.
In support of her motion before me the first respondent reads the affidavit of Andras Markus affirmed on 27 February 2006. That affidavit annexes various documents including the Tribunal decision, which is dated 21 June 2000. That decision is also annexed to an affidavit sworn by the applicant on 29 May 2003. The applicant’s affidavit states that a copy of the letter from the Tribunal notifying the applicant of its decision is also annexed. That letter is not, in fact, attached to the affidavit.
RECORDED : NOT TRANSCRIBED
Accordingly, clearly as at 29 May 2003 the applicant was aware of the Tribunal's decision.
Pursuant to s.477 of the Act, a review of the Tribunal's decision by the Federal Magistrate's Court must be made within 28 days of notification to the applicant of that decision. Applications filed after 1 December 2005 are deemed as being notified on 1 December 2005 (sch. 1 pt 2 cl. 42 of the Migration Litigation Reform Act 2005(Cth)).
Pursuant to s.477(2) of the Act, this Court has power to extend the 28 day period required up to a maximum of 84 days where this Court is satisfied that it is in the interests of the administration of justice to do so.
In the case before this Court, the application was filed on 20 February 2006, that being 81 days from 1 December 2005 and plainly in excess of the 28 day prescribed period. However, as I have just stated, the Court has power to extend time and indeed such an extension is sought by the applicant in his application.
The first respondent submits that having regard to the history of the applicant's applications for review of the Tribunal's decision, that it is apparent that the applicant has no reasonable prospects of success and that in those circumstances it is not in the interests of justice that time be extended. For a detailed summary of the history of this matter through the Court system, I have regard to particularly paragraphs 4 to 11 of the affidavit of Mr Markus, which are as follows:
“4. On 6 July 2000, the second respondent Refugee Review Tribunal (“the Tribunal”) affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa.
5. 18 June 2003, the applicant filed an application for order nisi in the High Court of Australia, seeking the issue of constitutional writs. That application was given the court number S328 of 2003 (“the High Court application”). Annexed hereto and marked with the letter “A” is a copy of the draft order nisi and the applicant’s affidavit filed on 18 June 2003.
6. Pursuant to orders made by Gaudron J of the High court of Australia in certain representative proceedings in which the applicant was included as a represented party, on filing, the High court application was remitted instanter to the Federal court of Australia, where it was given the court number N2437 of 2003. Those proceedings were dealt with by Jacobson J of the Federal Court on the papers. His Honour made orders on 29 September 2005 dismissing the application for an order nisi with costs. In his reasons for judgment, his Honour noted that the applicant’s written submissions “take issue with findings of fact made by the RRT and make umparticularised allegations of error of law and denial of procedural fairness” (at [9]) and that “it is plain that there is no jurisdictional error in the decision of the RRT” (at [10]). Annexed hereto and marked with the letter “B” is a copy of his Honour’s reasons for judgment, given 29 September 2005.
7. On 18 October 2005, the applicant filed a notice of motion, in terms seeking orders setting aside the orders made by Jacobson J on 29 September 2005. Annexed hereto and marked with the letter “C” are copies of the notice of motion and supporting affidavit dated and filed by the applicant on 18 October 2005.
8. The applicant’s notice of motion was listed for hearing before Wilcox J of the Federal Court of Australia on 23 November 2005. The applicant did not appear at the hearing of his application which was treated by Wilcox J as an application for leave to appeal from the judgment of Jacobson J, and dismissed with costs on the basis that the applicant has failed to identify any jurisdictional error in the Tribunal’s decision. Annexed hereto and marked with the letter “D” is a copy of his Honour’s reasons for judgment, given 23 November 2005.
9. On 13 December 2005, the applicant filed an application in this court. The application was given the court number SYG2663 of 2005. On 15 December 2005, the applicant discontinued this application. Annexed hereto and marked with the letter “E” are copies of the application, filed on 13 December 2005, and the notice of discontinuance, filed on 15 December 2005, respectively.
10. In the meantime, on 14 December 2005, the applicant filed a further notice of motion in the Federal court of Australia, seeking leave to appeal from the orders dismissing his application for order nisi and extension of time to file such an application. Annexed hereto and marked with the letter “F” are copies of the applicant’s notice of motion and two supporting affidavits dated 13 and 14 December 2005 and filed on 14 December 2005.
11. The applicant’s application came before Wilcox J on 3 February 2006. On that day, having heard from the applicant, his Honour affirmed the decision which he made on 23 November 2005, and ordered that the applicant pay the respondent’s costs in a sum fixed. Annexed hereto and marked with the letter “G” is a copy of his Honour’s reasons for judgment, given 3 February 2006.”
I propose to deal briefly with the more recent procedural history as it is particularly relevant to the submission of the first respondent that the applicant has no arguable case in respect of establishing jurisdictional error on the part of the Tribunal.
In refusing orders nisi on 29 September 2005, Jacobson J in Applicant S328 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1353 stated the following at paras. 9 to 11:
“9. I have carefully considered the applicant’s written submissions. Though lengthy, these submissions take issue with findings of fact made by the RRT and make unparticularised allegations of error of law and denial of procedural fairness.
10. I have taken into account the fact that the applicant is not legally represented. However, it is plain that there is no jurisdictional error in the decision of the RRT.
11. In these circumstances, the applicant has not made out an arguable case. The application for an order nisi must be dismissed with costs.”
On 18 October 2005, the applicant filed a motion in the Federal Court of Australia seeking an order that the decision of Jacobson J in refusing the applicant's application for orders nisi be set aside.
On 23 November 2005, Wilcox J dealt with that application noting that the applicant did not appear. Wilcox J relevantly stated the following at para. 2 of his decision:
“The applicant seeks leave to appeal against the refusal of an order nisi by Jacobson J. His Honour refused an order nisi because no jurisdictional error had been identified. The application for leave to appeal and supporting affidavit also fail to identify any jurisdictional error.”
For those reasons Wilcox J dismissed the application for leave to appeal (Applicant S328 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1734).
On 13 December 2005, the applicant filed an application in this Court which appears to be in substantially identical terms to the application filed on 20 February 2006.
On 14 December 2005, the applicant filed a notice of motion in the Federal Court of Australia together with an affidavit in support seeking that the decision of Wilcox J refusing leave, be set aside.
On 15 December 2005, the applicant filed a notice of discontinuance in this Court in respect of his application filed on 13 December 2005.
On 3 February 2006, Wilcox J dealt with the applicant's motion filed on 14 December 2005, and I refer particularly to paragraphs 3 and 4 of that decision where his Honour stated:
“3. I asked the applicant today whether he was in a position to identify any jurisdictional error. He made it plain that he thinks the Tribunal's conclusions were wrong but it is apparent that he is talking about the Tribunal's conclusions of fact. As I have endeavoured to explain to him, the Court has no power to review the Tribunal's conclusions of fact.
4. Despite all that has happened, no jurisdictional error has yet been identified to the Court. For that reason, I have no option but to affirm a decision that was made on 23 November 2005.
(Applicant S328 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 103).
Certainly to the extent that the applicant's application filed on 20 February 2006 is capable of being construed as seeking review of the Tribunal's decision in respect of grounds 1 and 3, ground 1 is misconceived to the extent that it complains about a failure of the decision maker to notify the applicant. On the applicant's own evidence, at least on 29 May 2003, the applicant had notice of the Tribunal's decision.
Ground 3, of the applicant's application filed on 20 February 2006, makes a general assertion of error of law and improper exercise of a power without any particulars.
On the face of those grounds, there is no reviewable error discerned and I have particular regard to the decisions of Jacobson and Wilcox JJ where neither of their Honours was able to identify an arguable case of jurisdictional.
In the circumstances that I have referred to above, it is clear that, despite having had many opportunities to identify a reviewable error in the Tribunal's decision, the applicant has not done so.
There are no reasonable prospects of success of the applicant's present application before this Court.
The applicant relied today on an affidavit of his sworn on 20 February 2006 and filed in this Court on the same date, in which he stated that he was a member of a class action before the High Court that was ultimately remitted to the Federal Court. It was that matter that I understand to have been dealt with by Jacobson J.
The applicant went on to state:
“I don't know the procedure of Federal Court processidure [sic]. I happened [sic] for my lack of knowledge.”
I also have regard to the delay by the applicant in filing in this Court at least from the period of 1 December 2005, after the expiration of 28 days. The applicant provides no evidence of any steps taken by him to inform himself of his rights and the inadequacy of his explanation, coupled with the fact that his application has no reasonable prospects of success, lead me to conclude that I cannot be satisfied that it is in the interests of administration of justice that time be extended so as to the allow the applicant to file an application in the Federal Magistrates Court seeking review of the decision of the Tribunal. Accordingly, the application filed by the applicant on 20 February 2006 is incompetent and is otherwise dismissed.
I should perhaps just before I deal with costs also refer, in the decision that I have made, to the applicant's submissions to the Court this morning in opposing the notice of motion brought by the first respondent, in which he said that he did not get proper justice in the Tribunal and that that is why he has come again to this Court and why he seeks proper review of the matters. The applicant stated that it is not only justice by his life that, I understand, he is concerned about.
I explained to the applicant the relatively limited role that this Court has in undertaking a review of a decision of the Tribunal and that it was not for this Court to review the factual findings of the Tribunal. In the circumstances the applicant, although invited to make further submissions, chose not to. There is nothing in the submissions that the applicant put to the Court this morning that would enable me to arrive at a different decision according to law.
The first respondent seeks cost fixed in an amount of $2800 in respect of this morning's application. I note that the application has had a hearing time of two hours this morning; that there has been an appearance before the Registrar in respect of this matter; and costs have been incurred in both the filing of the motion and in the preparation of a response by the first respondent to the applicant's application. In addition there is the preparation of appropriately detailed written submissions filed in support of the motion, together with an affidavit comprehensively annexing relevant material that the Court, in the circumstances, would be required to consider in such an application.
I also have regard to the reasons for the decision that I have delivered this morning in respect of the opportunities to the applicant to identify an arguable case.
In the circumstances, I am satisfied that the sum sought is reasonable.
ORDER DELIVERED
The first respondent also seeks an order that the Registry not accept any further application for a review of the Tribunal's decision, or the delegate's decision without leave of the Court. In light of the decision that I have made in respect of the applicant's application before this Court, this Court has no jurisdiction to make such an order.
However, Having regard to the reasons for dismissing the applicant's application this morning, it is my view that for the applicant to seek to file any further application in this Court seeking review of either the delegate's decision or the Tribunal's decision, would be an abuse of process.
ORDER DELIVERED
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 16 June 2006
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