S354 of 2003 v Minister for Immigration
[2006] FMCA 1579
•2 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S354 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1579 |
| MIGRATION – Refugee – jurisdiction of the Court – Notice to Produce – documents to be produced as they relate to the issue of actual notification. |
| Migration Act 1958, ss.5, 5E, 166BB, 166B(1), 414, 476, 476(2), 477, 477(2), 477(2)(a), 486D(1). Federal Magistrates Court Rules 2001, rr.15.24, 44.06(2)(a), 44.06(2)(b). Migration Litigation Reform Act 2005, Sch.1 cl42(a). Federal Magistrates Act 1999, s.10(1) Migration Amendment Act (No 2) 1992 (Cth), s.22AA. |
Bailey v Beagle Management [2001] 182 ALR 264
CCOM v Jiejing Pty Ltd [1992] 109 ALR 673
SZEKC v Minister for Immigration and Multicultural Affairs [2006] FCA 1065
Nguyen v Minister for Immigration & Anor [2006] FMCA 1495
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494
| Applicant: | APPLICANT S354 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 598 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 August 2006 |
| Date of Last Submission: | 31 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. P. King (assisted by Ms. Sinclair) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s Notice to Produce, filed on 10 August 2006, is upheld, but only as it relates to documents that go to the issue of the actual notification to the applicant of the Tribunal’s decision dated 26 October 1993.
By 9 November 2006 the first respondent’s solicitors to file and serve an affidavit listing and annexing the relevant documents referred to in Order 1.
The applicant to file and serve any affidavit by 30 November 2006.
The matter be set down on 11 December 2006 at 10:15 a.m. for resumption of the hearing of the respondent’s Notice of Objection to Competency.
The costs of the Notice to Produce be costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 598 of 2006
| APPLICANT S354 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
I have before me an application filed in this Court on 24 February 2006 seeking an order that the respondent Minister show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 October 1993 to affirm the decision of the delegate of the respondent Minister made on 30 June 1993 to refuse an application for refugee status in Australia) should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”).
The respondent Minister’s “Response” is that the application should be dismissed for want of jurisdiction (Rule 44.06(2)(a) of the Federal Magistrates Court Rules 2001 (“the Rules”)), or in the alternative that there has been delay in seeking the remedy (Rule 44.06(2)(b)), or that the applicant has raised no arguable case, or that the applicant failed to disclose prior judicial review (s.486D(1)).
The Minister has also filed a Notice of Objection to Competency on
10 March 2006 objecting to the jurisdiction of this Court to try the application on the basis that it was filed outside of the period provided for by s.477 of the Act for the filing of such applications.Notice to Produce:
On 10 August 2006 the applicant filed a Notice to Produce in the following terms:
“1. Order that the Respondents produce to the Applicant the documents called for by him by notice that is to say:
a. The Ministerial file or files relating to the Applicant;
b. The Departmental file or files relating to the Applicant;
c.The second Respondent’s file or files relating to the Applicant;
d.A copy of any Green Book in the possession or custody of the Respondents relating to the Applicant;
e.A copy of any Blue Book in the possession or custody of the Respondents relating to the Applicant;
f.Any communication at any time between the Second Respondent and the Department of Foreign Affairs and Trade referring to or concerning the Applicant;
g.Any communication at any time between the First Respondent and the Department of Foreign Affairs and Trade referring to or concerning the Applicant;
h.Any report or reports of the Department of Immigration and Multicultural Affairs or any of its predecessors in title to the First Respondent at any time regarding or referring to the Applicant.
2.Directions so as to permit the Applicant a reasonable opportunity to view the material in paragraph 1 prior to the hearing of the motion and of the matter herein.
3.Further of other directions.
4.Costs.”
On 15 August 2006 the respondent gave notice (by way of Notice of Motion) that she would seek that the applicant’s Notice to Produce be struck out. I note relevantly Rule 15.24 which is in the following terms:
“15.24 Notice to Produce
(1)A party may, by notice in writing require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.”
Following filing of the application for judicial review this matter had been ultimately listed for further directions before a Registrar of this Court on 17 May 2006. Orders were made that the first respondent’s Notice of Objection to Competency be heard on 24 August 2006, with argument about the applicant’s Notice to Produce. On that date
Mr. King was unable to appear (due to a personal emergency). The matter was then listed for hearing on 31 August 2006. On that day the applicant was represented by Mr. King. Mr. Reilly appeared for the respondent Minister. Submissions were made by both parties that related, in general terms, to two issues: the applicant’s Notice to Produce documents, and the Respondent’s Notice of Objection to the Competency of the Court to review this matter. At the conclusion of the hearing, the Court reserved its decision on the Notice to Produce.On 31 August 2006 evidence was given by Ms. Hervee Dupont Dejean, a solicitor in the employ of the respondent’s solicitors, that she had affirmed an affidavit on 11 August 2006 which asserts the first respondent’s objection to the Notice to Produce as set out in the respondent’s Notice of Objection to it, namely that the Court lacked jurisdiction to try the matter set out in the originating application.
Ms. Dejean asserts the Notice to Produce, in the circumstances, amounts to a “fishing expedition”. Mr. King cross-examined
Ms. Dejean. Relevantly (to the issue set out below), it was said that there was a Tribunal file in relation to the applicant and it contained (amongst other matters) correspondence. Further, in answer to a specific question from Mr. King, Ms. Dejean agreed that there had been prior proceedings involving the applicant and the Minister and that the Australian Government Solicitor had been instructed to act in that matter.Submissions for the applicant
Mr. King made oral and written submissions on 31 August 2006. In essence, and relevantly, it was submitted that:
1)The first issue before the Court is a matter of “directions” and that irrespective of the issue of the Court’s jurisdiction, the applicant is “not ready for a hearing”, and will not be ready until the issue of “the documents” has been resolved.
2)There is no application before the Court to “strike out” the matter, except in relation to striking out the Notice to Produce.
3)That at the hearing before me, the appropriate course of action related only to the Notice to Produce as:
i)The applicant was not in a position to adequately conduct the case without the relevant documentation;
ii)That was the course required by the Rules and Legislation “generally”.
iii)Only then, “if the respondent so moves”, was it for the Court to deal with the respondent’s Motion and the issue of the Notice of Objection to Competency.
iv)That no order should be made in the exercise of the “interlocutory jurisdiction” to make further orders except for the further conduct of the matter and the preparation for hearing.
4)In relation to the Notice to Produce, that the respondents were “in contempt” and in this regard reference was made to the Full Court decision in Bailey v Beagle Management [2001] 182 ALR 264 (“Bailey”) and CCOM v Jiejing Pty Ltd [1992] 109 ALR 673. Mr. King submitted that the documents sought “may be relevant” and “may lead to a different line of inquiry”.
5)Mr. King submitted that only once the documents had been produced, may the Court consider “any other application any other party might have”. He submitted that to “collapse” or “telescope” the different questions before the Court, would lead to procedural injustice. In this regard he referred to the injustice that would be suffered by the applicant as the applicant has raised the issue of the legality of the decision (and he notes the decision was made “before amendments now relied on by the Respondents”).
6)In written submissions Mr. King also challenged the “Notice” (whether this relates to the Notice of Motion for summary dismissal of the Notice of Objection to the Competency was not clear), on the basis that “no Notice of the type lodged is permitted by the Rules”.
7)Further, that the Court must consider whether the proceedings are “doomed to fail” without deciding the point in relation to jurisdiction, and that in engaging in this process the Court should “lean in favour of jurisdiction” and should favour an approach of assuming jurisdiction.
8)In addition, that neither s.477 nor s.476(2) of the Migration Act 1958 apply to the decision in question in this case and that “the conduct being a void decision under the old Act was one to which the rules of natural justice applied”. In this regard Mr. King referred to S157 v Minister [2003] 211 CLR 476 where the High Court held that the proceedings in that case were not subject of a “privative clause decision” under the Migration Act provision in question because there was no decision at all under the Act.
9)Further, that SZEKC v Minister for Immigration and Multicultural Affairs [2006] FCA 1065 (“SZEKC”), a Judgment of Cowdroy J., on appeal from this Court dealing with the application of s.477, can be distinguished, or in the alternative (with respect) is in error.
10)Further that the Tribunal’s decision, “which is really a void act” is conduct occurring in 1993, well before “the 2001 amendments” affecting privative clause decisions and as such can be afforded prerogative relief.
11)Further, that as there is neither a “migration decision”, and nor was there “actual notification” (rather than deemed) the Reform Act [the Migration Litigation Reform Act 2005 (“the Reform Act”)] does not apply “as common sense also suggests”.
In essence and conclusion, that the proceedings should not be struck out “in limine” (I understood Mr. King to be using this phrase in the older English legal usage of: “at the outset”, rather than, what is in my view the more appropriate to the circumstances before me, ancient Latin root word meaning: “threshold” – see [10] below).
Submissions for the Respondent
Simply, the respondent objects to the Notice to Produce on the basis that such documents are not relevant as the Court has no jurisdiction to hear the application (see below).
The threshold issue: Jurisdiction of the Court
In my view, critical to the issue of the Notice to Produce, is whether the Court has jurisdiction to hear the application. If it does not, not only must the Notice to Produce be struck out, but, despite Mr. King’s submissions to the contrary the substantive application must be dismissed. I do not accept that the first issue before the Court is “directions” and that any issue as to jurisdiction is not the appropriate course for the Court at this stage. I note Mr. King’s reference to Bailey, and accept that the relevance of documents is critical when considering whether a Notice to Produce should be enforced. However, the Court’s power to hear the application is clearly critical in answering this question. I also reject Mr. King’s submission that to “collapse” or “telescope” the questions before the Court would lead to procedural injustice. The applicant is clearly on notice as to the fact that jurisdiction is an issue. There is no procedural unfairness in these circumstances.
Section 10(1) of the Federal Magistrates Act 1999 provides that this Court has such original jurisdiction as is vested by the laws made by the Parliament. In his application to this Court the applicant asserts that the Court should exercise its jurisdiction under s.476 of the Act to, in effect, grant him the remedy that he seeks. Section 477 (which became operational on 1 December 2005) makes specific reference to applications for remedies made to the Court in the exercise of the Court’s original jurisdiction under s.476. It establises time limits for the making of such applications. Section 477 clearly applied to this application which was made after its introduction to the Act. The application to the Court having been made on 24 February 2006 was also made after the 84 day period referred to in s.477(2)(a).
I understood Mr. King’s submission to be that the Court should act to, in effect, “assume” jurisdiction, order full production of all relevant documents, hear the merits of the claim and then decide jurisdictional and other issues. There may possibly be circumstances attendant with such doubt that Courts may be possibly moved in such a way. But in my view there is a difference in “assuming” jurisdiction in these circumstances and asserting jurisdiction where, plainly, none exists.
In relation to Mr. King’s submission that the Tribunal’s decision is “void” and “not a migration decision”, I reject the argument that the Tribunal’s decision does not fall within s.477 of the Act. The applicant in his application to this Court states that the Tribunal’s decision was made under s.22AA of the Act. This provision was inserted by s.8 of the Migration Amendment Act (No 2) 1992 (Cth). The source of the decision-making power to determine that a person was a refugee under the Act was contained in s.22AA of the Act, which provided:
“If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.”
Section 22AA of the Act was repealed in 2000 (Act No. 137, 2000) and as of that time, the Act no longer refers to a power to make a determination as to whether or not a person is a refugee, but instead refers to a power to grant or refuse a protection visa. Therefore this section, in that sense, is not relevant to the current application before the Court.
Further, and in any event the Tribunal’s decision record (submitted to the Court in support of the application) reveals that the application to the Tribunal was made pursuant to s.166BB of the Act (now repealed by s.414 of the Act, currently in force), which provided that where a valid application is made under s.166BA of the Act for the review of an RRT-reviewable decision the Tribunal must review the decision. An “RRT-reviewable decision” was defined by s.166B(1) of the Act to include a decision made before 1 November 1993 that a non-citizen is not a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1997.
Relevantly, in relation to the question as to whether this Tribunal decision is a “migration decision”, s.477(1) provides:
“(1) 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 (as opposed to deemed) notification of the decision.”
A “migration decision” is defined in s.5 of the Act to include a privative clause decision, or a purported privative clause decision, or a non‑privative clause decision. Assuming that the Tribunal’s decision was not infected by jurisdictional error it can be said to be a purported privative clause decision defined by s.5E of the Act:
“(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.”
In effect, the Tribunal’s decision is a migration decision for the purposes of s.477, subject to the jurisdictional limitation, and restricted by time limits that affect all migration decisions.
Application of the “Reform Act” if the decision is “void”
Mr. King submits that the provisions of the Migration Litigation Reform Act 2005 (Cth) (the Reform Act), and particularly s.477, does not apply as the Tribunal decision was not a migration decision and was really a “void act”. Mr. King’s argument was that as such, it was not subject to the time limits for the filing of applications in this Court, in relation to that decision. This argument clearly does not succeed and is not helpful to the applicant in any event. I refer to the recent Judgment of Smith FM in Nguyen v Minister for Immigration & Anor [2006] FMCA 1495 where at [14] to [19] His Honour stated:
“[14] Counsel argued that the decision of the Tribunal was affected by various jurisdictional errors, so that in law it was “no decision” or was a decision void of any legal effect, citing Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. She submitted that s.477 should be construed so as not to apply to such purported decisions. Although she did not invoke Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, implicitly her argument sought to give s.477 the same limited effect as resulted from the High Court’s interpretation of references to “a privative clause decision” when applied to the description: “an application … in respect of a privative clause decision …” in the now replaced time limits under former s.477.
[15] When addressing this argument, I am able to assume that the decision was affected by jurisdictional error, so that it is unnecessary for me to decide whether in fact it was so affected on any of the grounds contended.
[16] The difficulty with the argument is that the new s.477 applies to “an application … in relation to a migration decision …”. As a result of amendments made in the Migration Litigation Reform Act 2005 (Cth), the term “migration decision” is now defined in s.5 to include “a purported privative clause decision”, which is itself defined in s.5E:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
[17] I have in previous cases, held that this definitional structure has the effect that a decision of the Tribunal which is affected by jurisdictional error is a “migration decision” for the purposes of s.477 (e.g. SZBVC v Minister for Immigration [2006] FMCA 834). The same interpretation has also been taken in the Federal Court, where Cowdroy J concluded: “under the Migration Act as amended, the time limits affect all migration decisions, whether or not affected by jurisdictional error” (see SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065 at [6]). I shall follow my previous opinions.
[18] Moreover, this argument cannot help the applicant. If the present decision is not a “migration decision”, then the Court would lack jurisdiction for the more direct reason that the decision would fall outside the statutory jurisdiction defined by s.476(1).
[19] I therefore reject the argument that the present decision of the Tribunal was not a decision falling within s.477.”
With respect, I agree with His Honour in this regard. Clearly the “validity” of the decision is irrelevant in relation to the jurisdiction of the Court if s.477 applies. It is the time of the filing of the application that is critical, and the argument that the Reform Act amendments do not apply, can be of no assistance to the applicant. I do not agree with Mr. King’s submission that SZEKC should be distinguished, or that (with respect) that it is in error. It is plainly not for this Court to find error in matters on appeal from it, nor in relation to what it said about s.477, can I see that the circumstances before me can be distinguished. Further, even if the subject decision n were to be infected with jurisdictional error (and even if after production of documents this could be shown) in my view, it is still a migration decision for the purposes of s.477. As Cowdroy J. said in SZEKC at [6]:
“The appellant has referred to several cases which indicate that there is no time limit in respect of decisions affected by jurisdictional error. These cases were decided before the above-mentioned amendments to the Migration Act. Under the Migration Act as amended, the time limits affect all migration decisions, whether or not affected by jurisdictional error…”
The Migration Litigation Reform Act 2005 (Cth)
Amendments to the Act, made by the Reform Act, provide time limits to be applied to the filing of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1)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 (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
I note that, irrespective of any actual notice, Sch.1 cl.42(a) to the Reform Act, provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
The Reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (as it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 (28 December 2006), and no extension of time is given extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to
23 February 2006), the application is incompetent before this Court. I note here that the application was filed on 24 February 2006, after the maximum “grace” period allowable under the transitional provisions. In this regard, if I find there has been actual notification, the applicant’s request in his application to the Court for a extension of time was not made within 84 days of the actual (as opposed to deemed) notification of the Tribunal’s decision as required by s.477(2)(a) and is therefore refused.As stated, I have before me the respondent’s Notice of Objection to Competency filed on 10 March 2006 objecting to the jurisdiction of this Court to try the applicant’s application. This is on the basis that:
1)The application is in relation to a Tribunal decision dated
20 October 1993.2)The transitional provisions to the Reform Act apply.
3)The application was filed on 24 February 2006, contrary to s.477(1) of the Act, 85 days after the actual notification of the Tribunal’s decision.
4)An application for an order that the Court extend the 28 day period, as provided by s.477(2)(a) of the Act, was not made.
5)By virtue of s.477(3) of the Act this Court not make an order to allow the applicant to make an application mentioned pursuant to s.477(1) of the Act, outside the 28 day period.
In effect that pursuant to s.477 the applicant had initially 28 days, and then a further 56 days, from 1 December 2005 to file his application. This should have been done by 23 February 2006. It was filed “late” on
24 February 2006.Actual Notice
In all therefore, if the Court is satisfied that there has been actual notice (this is not to be confused with the deeming of actual notice to be on
1 December 2005) of the Tribunal’s decision, then the application to the Court is incompetent, and not only the Notice to Produce, but the application itself must be dismissed.The applicant’s application, filed on 24 February 2006, states that the applicant received “notification” of the decision, which is said to be the subject of review now, on 29 October 1993.
It is possible to infer therefore from the applicant’s statement on the face of his application to this Court that he did have actual notice of the Tribunal’s decision. Mr. King submitted that this question was in dispute, and that actual notice cannot be assumed on this basis alone.
I note, and with respect agree with, what Smith FM said in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 at [46] that:“In my opinion, s.477 requires the Court to investigate the date when the applicant to the Court personally received notice of the decision and any accompanying statements. The notice required to have been received is notice of the existence and availability to the applicant of the decision and any relevant documents. I do not consider that the language requires the Court to be satisfied in all cases that, in fact, the applicant has received actual physical possession of such documents… It is enough that a point of time can be located when the relevant documents have passed into the possession or control of the applicant, and the applicant was able, if he or she so desired, to read and take advice upon them.”
In my view, if the applicant was actually notified of the decision at some time prior to 1 December 2005, this Court does not have jurisdiction to hear this application. Simply, it has been filed out of time (albeit by one day). In his application the applicant asserts he was notified of the Tribunal’s decision on 20 October 1993. Mr. King submitted that there may be some issue as to whether this was actual notice, or notice arising from “legislative deeming provisions”. Given that in my view, s.477 requires actual notice of the Tribunal’s decision then documents in possession of the first respondent going to this issue should be produced at this time. I should note that evidence that there were prior proceedings (arising from the cross examination of Ms. Dejean) was not such as to specify that it was this Tribunal decision that was the subject of these proceedings. Nor could actual notice therefore be inferred. Although the affidavit of Ms. Dejean affirmed on 29 August 2006 (and filed) makes reference to such proceedings before the High Court involving the Tribunal decision such that to have commenced such proceedings on
20 June 2003 the applicant would have clearly had actual (as opposed to deemed) notice of the decision before 1 December 2005, this was not read into evidence before me and Mr. King was not able to cross-examine on it.In all therefore I uphold the Notice to Produce documents in so far as it relates to documents going to the issue of actual notice of the Tribunal’s decision to the applicant. At this time this is the relevant issue before the Court. In this regard I note the evidence before the Court of the existence of a relevant Tribunal file and of (unspecified) correspondence contained in it.
The remainder of the Notice to Produce is struck out. Should the applicant be able to persuade the Court that it does have jurisdiction, notwithstanding his assertion that he was notified of the Tribunal’s decision prior to 1 December 2005, then the issue of relevant documents can be addressed at that time, most probably by an order requiring the filing of relevant documents (the Court Book) in the usual manner in matters of this type before the Court.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 02 November 2006
1
6
5