Sochorova v Minister for Immigration - [2010] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SOCHOROVA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 33

PRACTICE AND PROCEDURE – Application for summary judgment – applicant seeks damages for defective decision making – summary dismissal of proceedings granted.

Migration Act 1958 (Cth), ss.67, 68, 373
Federal Court Act 1976, s.31A
Federal Magistrates Act1999, s.17A
Judiciary Act 1903, s.39B
Administrative Decisions (Judicial Review) Act1977, ss.5, 6, 7, 11, 16
Administrative Appeals Tribunal Act, s.60
Federal Magistrates Court Rules2001, r.13.10

White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
Gallo v Dawson (1992) 109 ALR 319
Sochorova v Minister for Immigration & Anor [2008] FMCA 1544

Applicant:

TEREZIE SOCHOROVA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 722 of 2009

Judgment of:

Wilson FM

Hearing date:

30 October 2009

Date of Last Submission:

6 November 2009

Delivered at:

Brisbane

Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

N/A

The Applicant:

In person by brother Mr Joseph Moda

Counsel for the Respondents:

N/A

Solicitors for the Respondents:

Clayton Utz

ORDERS

There be judgment for the respondents against the applicant pursuant to s.17A Federal Magistrates Act 1999, and the application filed 11 August 2009 is dismissed.
The applicant shall pay the respondents’ costs of and incidental to the proceedings, including the costs of the notice of motion filed 5 October 2009, to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG 722 of 2009

TEREZIE SOCHOROVA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The respondents seek summary dismissal of the applicant’s claim. The proceedings were commenced in the Federal Court of Australia. The respondents’ Notice of Motion seeks dismissal under s.31A Federal Court Act 1976. On 9 October Logan J remitted the matter to this Court. Section 17A Federal Magistrates Act 1999 (“FMC Act”) is in the same terms as s.31A Federal Court Act. It relevantly provides:
(2)     The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)     the first party is defending the proceeding or that part of the proceeding; and
(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)     hopeless; or
(b)     bound to fail;
for it to have no reasonable prospect of success.
In their written submissions, the respondents refer to Rule 13.10 Federal Magistrates Court Rules 2001. That Rule relevantly provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
There has been debate as to the extent to which the court should examine the merits of a case in determining whether to summarily dismiss it. Although s.17A of the FMC Act (and the cognate s.31A Federal Court of Australia Act 1976) were introduced to allow the courts more flexibility in dealing with what were perceived to be unmeritorious migration appeals (for the history of which see White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [55] ff) the legislation now embraces a test that allows a court considerably more scope in all proceedings than the ‘traditional test’ in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. That is, in my view, made abundantly clear by the language of s.17A(3) of the FMC Act.
In Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 the Full Federal Court was not unanimous as to the appropriate test to apply on an application for summary dismissal. Rares J, a member of the Full Court, had earlier expressed the test in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720, as follows, at [42], [44] and [45]:
“[42] I am of the opinion that, properly construed, s31A(2)(b) requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or the part of the proceeding in question. …
[44] In a case to which s31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter does to trial. …
[45] I am of opinion that in assessing what reasonable prospects of success are for the purposes of s31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking (1947), contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of the opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s31A envisages. …”
Nuances in the test to be applied do not arise in this case because the respondents submit that, as a matter of law, the applicant cannot succeed in her claim, because the Court does not have the jurisdiction to grant the remedy that she seeks.
An application was filed, on 11 August 2009, purportedly seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) in respect of the decision made on 23 March 2006 to grant the applicant a permanent residency visa. In fact, when one has regard to the applicant’s material, she does not in fact seek any relief in respect of the decision of 23 March 2006, except that her visa should have been backdated, but rather her complaint is as to the length of time that it has taken for the visa to be granted.
The issue of whether the visa can be backdated can be dealt with shortly. Section 68(1) and (2) Migration Act 1958 provide:
(1)     Subject to subsection (2), a visa has effect as soon as it is granted.
(2)     A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a)     specified in the visa; or
(b)     when an event, specified in the visa, happens.
By s.67 of the Act:
A visa is to be granted by the Minister causing a record of it to be made.
There is no provision in the Act that permits a visa to be granted from a day earlier than when it is recorded. It can be post-dated but not backdated.
It follows that the applicant has no basis upon which she can seek relief in respect of the decision actually made on 23 March 2006. She cannot seek a writ of mandamus, as claimed by her. That part of the application has no reasonable prospects of success.
I turn then to the other aspect of the claim, which is that by their delay in granting the visa, the respondents, and each of them, has caused the applicant to suffer loss. This is because, it is said, due to the delay the applicant has not been entitled to receive benefits under the Social Security Act 1991, nor from Medicare under the Health Insurance Act 1973.
The applicant seeks damages in three components:
a)For medical expenses of $19,175;
b)For loss of pension entitlements of $107,194; and
c)For stress related injury to health of $320,833
The application is made under s.39B(1A)(c) Judiciary Act and ss.5, 6, 7 and 16 of the ADJR Act.
The provision of the Judiciary Act relied upon by the applicant provides:
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
The applicant did not refer to any statute that entitles her to claim damages against either respondent. In her written submissions, reference is made in a number of places to false imprisonment. If the applicant had a justiciable claim for damages for false imprisonment (about which I express no conclusion, because it is not part of the application before the Court) it would not be one that arises under any law made by the Commonwealth Parliament. It is a claim at common law.
No claim for damages could arise under the Migration Act itself.
I conclude, therefore, that the applicant’s claim for damages insofar as it relies on the Judiciary Act, has no reasonable prospects of success.
The ADJR Act claim gives rise to three problems for the applicant. First, the Act does not confer any entitlement to claim damages in respect of the defective or unlawful making of an administrative decision. Section 16 of the Act sets out the remedies that can be granted.
Secondly, s.11(3) ADJR Act prescribes a 28 day time limit for applications seeking review of decisions. As I will shortly set out, a number of decisions have been made that have affected the applicant. The latest of those decisions was on 23 June 2006. More than three years has elapsed since the making of the last decision. No application has been made for an extension of time.
Thirdly, the applicant has not properly identified the decision or decision that she seeks review of. In so far as the applicant seeks review of decisions made under the Migration Act, as I think must be the case, that legislation specifically provides for a regime of review. It contains a procedure by which privative clause decisions can be challenged, sets time limits, and provides a comprehensive code of the rules of natural justice. By schedule 1 to the ADJR Act, in particular sub-clauses (da) and (db), the ADJR Act would not apply to the decisions of which the applicant complains. The applicant has exercised her rights to seek review of decisions made adversely to her under the Migration Act.
In my view, the applicant has no reasonable prospects of successfully prosecuting her claim for the relief that she seeks under the ADJR Act.
It follows that the two claims articulated by the applicant ought be summarily dismissed.
The dismissal of these proceedings does not mean that the Court condones the way in which the applicant’s claim for a visa has been handled. Of course, the Court has not heard all of the evidence about why it took so long for the applicant’s claim to a visa to be dealt with. However, the delays involved do seem excessive. It is hard not to feel sympathy for a 67 year lady who has been trying for years to obtain a visa to be re-united with her brother from whom she was separated during the Second World War.
The applicant applied for her visa on 14 July 1999. It was not granted until 23 June 2006.
In the intervening period, the applicant has been to the Migration Review Tribunal four times, to the Federal Court twice and to the Full Federal Court twice, as well as having numerous meetings and correspondence with officers of the department. She has been embroiled in a petty bureaucratic wrangle over whether she should have a waiver of fees, because the Regulations changed between when her application was first made and when it was reconsidered, and a fresh application had to be made. The Minister sought leave to appeal to the Full Court against an extension of time granted by Kiefel J that was necessitated by the deficient way in which the Tribunal’s initial decision was handed down.
Unfortunately, the way in which the applicant has been subjected to a bureaucratic nightmare does not confer a right of action under any Commonwealth statute. Indeed, as Kirby P (as his Honour then was) said in Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 724:
“There has for some years been a large debate concerning the entitlement of persons affected adversely by administrative decisions to compensation for the damaging consequences thereof. Sometimes judicial review is a precursor to a claim for damages, as in Dunlop v Woollahra Municipal Council [1982] AC 158. Sometimes, in the course of a civil action, the legality of the administrative action will be raised. No general cause of action exists by our law under which public authorities which exceeded their jurisdiction (as by denial of natural justice which they are obliged to accord) are liable in damages for the consequences which they thereby occasion.”
I should add, for the sake of completeness, a reference to two matters.
The first is that, although not argued, members of the Migration Review Tribunal enjoy certain privileges and immunities: s.373 Migration Act (and by application s.60 Administrative Appeals Tribunal Act, and the principles discussed is cases such as Gallo v Dawson (1992) 109 ALR 319).
The second is that the solicitor for the respondents helpfully drew to the applicant’s and the Court’s attention to the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme). A copy of Finance Circular No. 2006/05 was provided to the applicant.
I raise the first matter to highlight the difficulties that the applicant might confront if she seeks a remedy in another Court. The applicant has already been the subject of an adverse order in this Court when she attempted to obtain much the same relief under the Migration Act or the Human Rights and Equal Opportunity Commission Act 1986: Sochorova v Minister for Immigration & Anor [2008] FMCA 1544.
I raise the second matter because it may afford the applicant with a means of recovering some, although probably not all, of the loss that she claims she has incurred. Of course, no representation was made by either respondent as to the applicant’s prospects of receiving a payment under the CDDA scheme.
The applicant will have to pay the respondent’s costs, as they have been successful on their application. It is, of course, a matter for the respondents whether they enforce that order.

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

Associate: Lynnette Chin

Date: 22 January 2010