S338 of 2003 v Minister for Immigration - [2007] FMCA 1416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S338 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1416

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory application to prohibit the Minister from removing the applicant from Australia – interlocutory application refused.

Migration Act 1958 (Cth), ss.48B, 417,424, 424A, 474

[name deleted] v Minister for Immigration [2001] FCA 183
S338 of 2003 v Minister for Immigration [2005] FCA 1680
Minister for Immigration v SZKKC [2007] FCAFC 185

Applicant:

APPLICANT S338 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2522 of 2007

Judgment of:

Driver FM

Hearing date:

16 August 2007

Delivered at:

Sydney

Delivered on:

16 August 2007

REPRESENTATION

Mr I Rintoul appeared, with leave, on behalf of the Applicant

Solicitors for the Respondents:

Mr A Markus
Australian Government Solicitor

ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application for interlocutory relief is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the interlocutory aspect of the application, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2522 of 2007

APPLICANT S338/2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) filed in this Court earlier today. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 December 2000. The matter was brought before me urgently this afternoon because of interlocutory relief sought in the application. The applicant claims interlocutory relief in the form of a writ of prohibition directed to the Minister preventing him from acting or giving effect or proceeding further on the Tribunal decision and, perhaps more relevantly, an order that no action will be taken to remove the applicant from Australia while a decision on the show cause application is pending.
The urgency arises because the Minister proposes to remove the applicant from Australia later tonight pursuant to s.198 of the Migration Act. I have before me in addition to the application and the decision of the Tribunal, several exhibits. Exhibit A1 is a minute taken from the records from the Minister's Department which details the applicant's history of dealings with the Department since 25 April 2000. Exhibit A2 is a request for removal from Australia signed by the applicant on 13 August 2007. I understand that in consequence of signing that document the applicant was granted a short term bridging visa which expired yesterday. At the expiry of that bridging visa the applicant became a prohibited non citizen and was taken into detention and the Minister formed the intention to remove the applicant from Australia. Exhibit A3 is a letter from Parish Patience Immigration Lawyers to the Minister's Department in relation to a request to the Minister relating to the exercise of his power under s.48B of the Migration Act.
I received submissions this evening from the Minister's counsel and from the applicant as well as his friend, Mr Rintoul, who I heard by leave. The issues are whether there is a significant question to be tried on the show cause application meriting the provision of the interlocutory relief sought. There would also be the issue of the balance of convenience if a serious question on the application were found.
There may be an issue of the competence of the application. That was not addressed by the parties. However, the applicant asserts notification of the Tribunal decision on 20 January 2001. If the Minister were able prove physical delivery to the applicant of a copy of the Tribunal decision at any time before 1 December 2005, the application would be incompetent notwithstanding the decision of the Full Federal Court in Minister for Immigration v SZKKC [2007] FCAFC 185. However, there is no evidence of actual physical delivery of a copy of the decision and reasons to the applicant. It is undoubtedly the case that he has been notified in some way of the Tribunal decision well before 1 December 2005. I note that the Full Court decision in SZKKC is the subject of a special leave application to the High Court by the Minister. For the purposes of this hearing I proceed on the basis that the application should be assumed to be competent.
The applicant has a reasonably extensive litigation history. He sought judicial review of the decision of the Tribunal in 2001. That application was dealt with under the Migration Act as it stood prior to the enactment of the privative clause in s.474 of the Act. Wilcox J dismissed that application on 21 February 2001. At para.4 his Honour states:
I took [the applicant] through the Tribunal's reasons and pointed out the findings that had been made and that they were all findings of fact. [The applicant] accepts this and seems to accept that I cannot interfere with those findings. He is unable to point to any error of law or any failure by the Tribunal to follow any requirement of the Migration Act.
It appears from paragraph 3 of his Honour's judgment that the applicant had proceeded with that application notwithstanding advice from counsel that pointed to a desirability of withdrawing it. The applicant's appeal against the decision of Wilcox J was unsuccessful. The appeal was dismissed on 21 August 2001 by Lee, Branson, Stone JJ. I note in the reasons for that decision that the applicant was unable to identify any error in the decision of Wilcox J.
Subsequently, the applicant became involved in the Muin and Lie class action. He was permitted to file a separate application which was remitted to the Federal Court. That application was dismissed by Emmett J on 23 November 2005 on an interlocutory basis. The reason was the failure of the applicant to provide particulars of his application: S338 of 2003 v Minister for Immigration [2005] FCA 1680. That appears to have been the last judicial proceeding taken by the applicant in respect of the Tribunal decision before his present application to this Court.
I note, however, from exhibit A1 that in the intervening period the applicant has had extensive dealings with the Minister's Department. In particular, the applicant unsuccessfully sought Ministerial intervention pursuant to s.417 and s.48B of the Migration Act. I infer from that history that the applicant has sought to draw to the Minister's attention additional matters to those dealt with by the Tribunal.
I accept counsel for the Minister's submission that most of the grounds in the present application could have been raised in the earlier Federal Court proceedings. The application contains five grounds. The first is simply an attack on the merits of the Tribunal decision, which cannot be the subject of a judicial review proceeding. Ground 2 asserts a failure by the Tribunal to understand the applicant's claims and a failure to consider relevant matters. Ground 3 asserts that the Tribunal exceeded its jurisdiction in not affording the applicant natural justice. The particulars assert a breach of s.424A of the Migration Act. Ground 4 asserts that the Tribunal refused the application without any proper grounds and proper investigation. No particulars are provided. Ground 5 asserts that the factual findings by the Tribunal were significantly inconsistent with those of the delegate. That ground also asserts pre-judgement.
In my view, grounds 1, 2, 3, and 5, to the extent that they rely on breaches of statutory obligations on the Tribunal, could have been raised in the earlier proceedings. To the extent that the application relies on the general law, no issues of estoppel would arise. I proceed on the basis that there are elements of the application which would survive any finding of Anshun estoppel.
The applicant has delayed some six and a half years bringing this present application. His friend, Mr Rintoul, told me that the applicant has suffered from mental illness over that period and that he has also suffered from a lack of legal representation. However, he has also had access to legal representation at various times over that period and has, undoubtedly, had access at various times to legal advice.
The applicant may have suffered from mental problems, but they have not prevented him from having extensive and near continuous dealings with the Minister's Department over the whole period. I am not satisfied that any mental difficulties the applicant may have suffered and any lack of legal representation provides a sufficient explanation for the delay in bringing the application.
An even more substantial problem is the lack of merit in the application itself. Ground 1 must necessarily fail. There is no indication on the face of the Tribunal decision of any lack of understanding by the presiding member or failure to consider relevant matters. To the extent that a breach of s.424 as alleged it appears to me that no disclosure obligation arose. The Tribunal decision turns on information provided by the applicant itself which was not disclosable by reason of s.424A(3)(b) of the Migration Act. To the extent that a want of natural justice or procedural fairness under the general law is alleged, it is apparent from the Tribunal decision that the applicant was invited and attended a hearing at which he was questioned at length and apparently had an opportunity to respond to the Tribunal's concerns.
It does not appear to me that any adverse information was withheld from the applicant. He appears to have had a reasonable opportunity to address the issues relevant to the outcome of his review application. There is no substance to the assertion that the Tribunal dealt with the matter before it without proper grounds and proper investigation. It is plain on the face of the Tribunal decision that it considered the applicant's claims and dealt with them. The Tribunal was entitled to deal with the applicant's claims on the basis of the information provided by the applicant himself.
As to the fifth ground, I have not had the opportunity of seeing the decision of the delegate. However, there is nothing on the face of the Tribunal decision to support the contention of pre-judgement.
I find that the application to fails to disclose a serious question to be tried. Accordingly, I refuse the application for interlocutory relief.
The application for interlocutory relief having been dismissed, the Minister seeks scale costs of $1,000. The Court scale relevantly prescribes an amount of $1,000 payable in a migration proceeding that is concluded at or before the first court date. I am satisfied that the scale amount should be awarded. Mr Rintoul, on behalf of the applicant sought clarification but did not otherwise make submissions on costs. The applicant did not wish to be heard.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the interlocutory aspect of the application, fixed in the sum of $1,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 21 August 2007