SZABG and Anor v Minister for Immigration and Anor (No.2)

[2007] FMCA 1062

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABG & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2007] FMCA 1062

MIGRATION – RRT decision – third application for judicial review – competency under s.477 of Migration Act – constitutional validity of s.477 – effect of Bodruddaza – application dismissed as incompetent – also an abuse of process.

Federal Magistrates Act 1999 (Cth), s.39
Federal Magistrates Court Rules 2001 (Cth), rr.8.02(4), 13.10(c)
Migration Act 1958 (Cth), ss.476, 477, 483A, 486A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.28, 41, 42(a)
Judiciary Act 1903 (Cth), ss.39B, 78B

Abebe v Commonwealth (1999) 97 CLR 510
Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 133
Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 079
Bodruddaza v Minister for Immigration [2007] HCA 14
Fisher v Minister for Immigration & Citizenship [2007] FCA 591
Minister for Immigration v Thiyagarajah (2000) 199 CLR 343
NAIZ v Minister for Immigration [2005] FCAFC 37
Nguyen v Minister for Immigration [2006] FMCA 1495; 204 FLR 138
Nguyen v Minister for Immigration [2007] FCAFC 38
Rahman v Minister for Immigration (2002) 118 FCR 448
Randhawa v Minister for Immigration (2004) 52 FCR 437
SZABG & Anor v Minister for Immigration & Anor.[2007] FMCA 721
SZABG v Ministerfor Immigration[2003] FMCA 242
SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200
SZICVv Minister for Immigration [2007] FCAFC 39

SZJYV v Minister for Immigration & Citizenship [2007] FCA 731
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94
Wong v Minister for Immigration [2004] FCAFC 242

First Applicant: SZABG

Second Applicant: SZABI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 315 of 2007

Judgment of: Smith FM

Hearing date: 26 June 2007

Delivered at: Sydney

Delivered on: 26 June 2007

REPRESENTATION

Counsel for the Applicant: Dr J Azzi

Solicitors for the Applicant: Davidson James & Associates

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed as incompetent.

2. The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 315 of 2007

SZABG

First Applicant

SZABI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed in this Court on 1 February 2007, which seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 September 2002 and handed down on 16 October 2002.  The Tribunal affirmed a decision of a delegate made on 20 March 2000, refusing to grant protection visas to the applicants, a husband and wife. 

2. The applicants have previously challenged the validity of the Tribunal's decision in two sets of proceedings. On 7 November 2002 they applied to this Court under its then jurisdiction under s.483A of the Migration Act, which was that of the Federal Court under s.39B of the Judiciary Act.  That application was dismissed by Driver FM on 16 June 2003 (see SZABG v Ministerfor Immigration [2003] FMCA 242). The applicants then appealed to the Federal Court, but filed a notice of discontinuance on 9 September 2003.

3. They then commenced their second set of proceedings in the High Court's Constitutional jurisdiction, by filing a draft order nisi in the High Court on 16 September 2003.  This was remitted to the Federal Court by Heydon J on 16 February 2004.   The application for orders nisi was dismissed by Jacobson J on 21 October 2004.  In his judgment, his Honour examined the merits of various arguments upon which relief was sought, notwithstanding the fact that an application for judicial review had previously been dismissed by Driver FM.  

4. The applicants then appealed to a Full Court, which dismissed their appeal on 13 May 2005 (see Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 133). In the Court's judgment, their Honours said that Jacobson J had taken an "unduly favourable" course of considering the merits of the second attack on the Refugee Review Tribunal's decision.  They said:

   Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process.  There could not be a clearer case for the application of those principles (including Anshun estoppel).  There is no hint of any basis for avoidance of them.  It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]–[39] (special leave refused 4 February 2005). This proceeding is a transparent attempt to relitigate the same matter that was previously litigated. The attempt should not have gone as far as it did.

5. The applicants then sought special leave to appeal to the High Court, which was refused by Heydon and Gummow JJ on 7 March 2006 (see Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 079). The present application is therefore their third attempt to litigate grounds of judicial review in relation to the same decision of the Tribunal.

6. Section 476 (1) provides:

   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.

7. Section 477 provides:

   77  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.

8. The transitional provisions which introduced this time-limit applied it to applications made after its commencement concerning decisions made before its commencement, but provided that in relation to such applications the time limit takes effect “as if the actual notification of the decision took place on the commencement day”, if “actual notification of the decision is given before the commencement day” (see Migration Litigation Reform Act 2005 (Cth), Sch. 1 cll.28, 41 and 42(a), considered in my decisions in SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200 and Nguyen v Minister for Immigration [2006] FMCA 1495; 204 FLR 138, which were upheld by the Full Court respectively in SZICVv Minister for Immigration [2007] FCAFC 39 and Nguyen v Minister for Immigration [2007] FCAFC 38).

9. In the present case, the applicants’ history of litigation before 1 December 2005 makes it plain that they had “actual notification” of the Tribunal’s decision prior to that date, whatever that term means under s.477. It is therefore clear that their present application was brought outside the 84 days referred to in s.477(2) when read with the transitional provision. It is conceded by counsel for the applicants that their application is incompetent if s.477 is legally effective.

10. At the first Court date in the application on 27 February 2007, the applicants were represented by counsel.  The Minister foreshadowed an interlocutory application raising issues of competency and abuse of process.  I gave directions by consent listing those issues for hearing on 10 May 2007.  The respondents filed their interlocutory application for summary dismissal on 6 March 2007 in accordance with my directions. 

11. On 10 May the applicants were represented again by counsel, who made submissions challenging the legal effectiveness of s.477. In the course of his submission he raised Constitutional arguments without there having been served a notice on the Attorneys-General under s.78B of the Judiciary Act.  I accordingly was required to adjourn the proceedings to allow that to happen (see SZABG & Anor v Minister for Immigration & Anor [2007] FMCA 721).

12. Today the applicants are again represented by their previous counsel, who, for the first time, applied for the transfer of the proceeding to the Federal Court pursuant to s.39 of the Federal Magistrates Act 1999 (Cth). The considerations relevant to such an application are set out in Federal Magistrates Court Rules 2001 (Cth), r.8.02(4) to include:

    (a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

    (b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

    (c)whether the proceeding will be heard earlier in the Federal Magistrates Court;

    (d)the availability of particular procedures appropriate for the class of proceeding;

    (e)the wishes of the parties; …

13. Counsel for the applicants argued that there was a question of general importance raised in the proceeding, being the legal effectiveness of s.477, and that this should not be addressed in this Court due to his apprehension that this Court would be bound to follow opinions already expressed in the Full Court in SZICV (see above).  On counsel's submissions, there were arguments available to the applicants which the applicants wished to present to the Federal Court seeking to persuade that Court to distinguish or not to follow Buchanan J’s opinions in SZICV.

14. I accept that this Court's opinion about its own jurisdiction in the face of s.477 may not be conclusive. However, the Court has the duty to address for itself the ambit of its own jurisdiction, and it is desirable that it should do so promptly when a jurisdictional point is raised. Moreover, as I shall explain, I do not accept that the law is in any doubt, so far as this Court is concerned. I consider that authorities of the Federal Court binding upon this Court clearly govern the situation in favour of the legal effectiveness of s.477. I therefore was not persuaded that the issue raised by the applicants should not be addressed by this Court.

15. In relation to the other considerations raised by r.8.02(4), no submissions were made pointing to matters of convenience or costs favouring a transfer. Indeed it is apparent on the history of the matter which I have set out above, that it would be inconvenient, and not save any costs or time, for this Court not to decide the matter today. A concern about abuse of process also supports my opinion that the matter should be decided in this Court today. I therefore concluded that I should not transfer the proceeding, but should determine the questions of competency for myself.

16. As I foreshadowed in my published reasons for adjourning the application to today, the applicants' counsel presented his attack on s.477 on two bases. The first is a contention that s.477 is invalid under the Constitution, on the ground that it impermissibly curtails federal jurisdiction conferred on this Court, being a Federal Court created under s.71 of the Constitution. It is argued that Parliament does not have legislative power under s.77(i) of the Constitution to "define the jurisdiction" of this Court when it is conferred in terms of s.476(1) of the Migration Act by reference to a time limit such as has been enacted in s.477. It is argued that this follows as a result of the same considerations which caused the High Court in Bodruddaza v Minister for Immigration [2007] HCA 14 to find that the time limit in s.486A of the Migration Act, which was enacted in the same amending legislation and in the same terms as s.477, was an impermissible fetter upon the High Court’s original jurisdiction under s.75(v) of the Constitution.

17. Counsel's second argument accepted that Parliament had power to impose a brief and mandatory time limit on a judicial review jurisdiction conferred on a Federal Court, but argued that the structure of Div. 2 of Pt. 8 of the Migration Act reveals an inconsistency when the time limit on the High Court enacted in s.486A, which was intended to be uniform with that on this Court’s jurisdiction, was held to be Constitutionally invalid. It is argued that principles of statutory construction taking into account the object shown in s.476(1) of giving this court “the same original jurisdiction … as the High Court has”, leads to the conclusion that Parliament intended s.477 to be ineffective if the High Court ruled s.486A to be invalid.

18. The submissions of Counsel for the applicants developed both of these arguments by reference to passages in High Court judgments which do not address the issues which now arise.  However, in my opinion his contentions should be determined against him in this Court, by weight of direct authority of the Federal Court and in the absence of any clear authority in the High Court. 

19. In particular, Counsel took me to numerous paragraphs in the judgments in Abebe v Commonwealth (1999) 97 CLR 510, seeking to find support for his Constitutional argument not only in the dissenting judgments of Gummow and Hayne JJ but also in the majority judgments. However, I was unable to identify such support in those judgments. They did not address Parliament's competence to impose time limits on a judicial review jurisdiction conferred on a Federal Court. The issue facing the High Court in that case was whether such a jurisdiction could be defined by reference to limited grounds of judicial review. The reasoning of the majority justices, in my opinion, supports the imposition of time limits on such a jurisdiction, even if it is defined by reference to para.75(v) of the Constitution, rather than the converse. For example, Gleeson CJ and McHugh J said at [28]:

    It is impossible to find any satisfactory ground for thinking that s.77(i) requires the Parliament to define the jurisdiction of Federal Courts by reference to the totality of rights, powers, privileges and duties which arise under the law or state of affairs which comes within s.75 or s.76 and which is to be the basis of the Federal Court's jurisdiction.

20. In the Federal Court, the Constitutional validity of a strict 28-day time limit, which applied to the Federal Court's migration jurisdiction which was considered in Abebe, was upheld in Rahman v Minister for Immigration (2002) 118 FCR 448. At [17] the Court said:

    It is a valid exercise of the legislative power to limit the jurisdiction of the Court to entertain only those applications filed within 28 days of notification of a judicially reviewable decision.

21. In relation to the current s.477, in SZICV Buchanan J, with whom Besanko J agreed, made a similarly clear statement at [46]:

    It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision.  In my view the imposition of such a limitation is the intention and effect of s.477. (see also at [64], and [67])

22. The arguments which were presented to the Full Court in SZICV may not have encompassed the extended submissions which counsel for the present applicants sought to put to this Court, and wishes to put to superior Courts. However, in my opinion, Buchanan J's opinion is binding upon me in the present situation, and is consistent with previously expressed opinions in that Court (see also Stone J in Fisher v Minister for Immigration & Citizenship [2007] FCA 591 at [39], and Downes J in SZJYV v Minister for Immigration & Citizenship [2007] FCA 731 at [5]).

23. His Honour’s opinion as to the Constitutional validity of s.477 was given in the part of his judgment which also addresses the present applicants’ argument on construction. The argument put to the Full Court appears to have been to the same effect:

    [43] Counsel for the appellant drew attention to the words ‘Subject to this section’ in s 476(1) which introduce the grant of jurisdiction. They submit that although the limitations in subs (2) are therefore obviously to be taken into account, the grant of power in subs (1) is otherwise explicitly of equal amplitude with the original jurisdiction of the High Court to grant prerogative and injunctive relief against officers of the Commonwealth. Upon this reasoning the time limits expressed in s 477 of the Act are ineffective because, it is argued, the original jurisdiction of the High Court under the Constitution cannot be cut down by legislation.

24. Buchanan J, after expressing the opinion that the validity of s.486A turned upon Constitutional principles which were not relevant to Parliament's power to impose a time limit in the jurisdiction of a Federal Court created by Parliament, said:

    [48] Whatever might be said about the potential clash between s.486A and the reservation of authority to the High Court under s.75(v) of the Constitution I do not accept that Parliament intended that the operation of s.477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Constitution, that will not signify that the intention remains unrealised in relation to s.477.

25. Buchanan J considered the High Court’s judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94, which addressed the previous strict time limit on the Federal Court. The High Court said that the time limit provisions “restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the Parliament under ss.76(ii) and 77(i) of the Constitution.”  Buchanan J concluded:

    Those limits were found to be strict and effective.  They were an essential part of the grant of jurisdiction.  No different position can obtain in the present case.  It follows that the first line of argument relied upon by the appellant must fail.  There is no doubt about the effectiveness or validity of the restrictions upon the jurisdiction of the Federal Magistrates Court imposed by s.477 of the Act.

26. In my opinion, the above authorities clearly answer both of the applicants’ challenges to the legal effectiveness of s.477, and it is appropriate that I should follow them today, and dismiss the application on the ground of incompetency.

27. The first respondent's application for summary dismissal on the ground of abuse of process therefore does not strictly arise for my consideration.  However, it was addressed in argument, if only in the context of the transfer of the matter to the Federal Court.   It is appropriate that I should express my opinions upon that matter.

1. Four points were submitted to avoid the characterisation of the present application in terms such as the Full Court characterised the applicants' second judicial review proceeding.  They were:

   i)Special circumstances for allowing a new challenge arise from new circumstances in Sri Lanka after the Tribunal's decision, which give weight to the applicants’ fears of persecution and their claims to protection under the Refugees Convention against return to that country. 

   ii)One of the grounds which they wished to raise argues error by the Tribunal in relation to issues of relocation within Sri Lanka.  It was contended that the law in the area of relocation significantly altered after the last judicial review proceedings, as a result of the Full Court judgment  in NAIZ v Minister for Immigration (2005) FCAFC 37 decided on 11 March 2005.

   iii)The applicants had previously never been represented by legal representatives, and they now had the benefit of such assistance.

   iv)Medical evidence showing psychological disabilities suffered by one or both of the applicants provided special circumstances which should permit the raising of fresh grounds of review in new judicial review proceedings.

2. However, in my opinion, none of these arguments provide the requisite "special circumstances" or explain why it was now "reasonable" to permit new grounds to be raised in fresh proceedings.  In my opinion, principles of Anshun estoppel and abuse of process discussed by the Full Court in Wong v Minister for Immigration [2004] FCAFC 242 clearly point in this case to the present proceedings being characterised as an abuse of process. I am not persuaded that the applicants have established any reasonable justification for not raising their arguments which they now wish to raise in their previous proceedings.

3. In relation to the four matters argued above, any change of circumstances after the Tribunal's decision would be entirely irrelevant to judicial review proceedings examining the validity of the 2002 decision of the Tribunal (see Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 in the High Court), and I do not consider that they can justify permitting the commencement of new proceedings brought for that purpose.

4. In relation to NAIZ, I note that, in fact, this decision was handed down prior to the Full Court decision in the second appeal of these applicants, and before the special leave application to the High Court.  I also am not persuaded that NAIZ broke any new legal territory.  In my opinion the judgment of Branson J, which was the leading judgment in the majority, is better regarded as applying principles well established by Randhawa v Minister for Immigration (2004) 52 FCR 437. It is also not clear to me that the Tribunal in fact addressed, or was required to address, issues of relocation in its decision.

5. In relation to the absence of legal representation in previous proceedings and the mental illness of the applicants, these are matters which attract sympathy but, in my opinion, do not justify permitting another round of judicial review, under principles of res judicata. 

6. For the above reasons, had the application been brought within this Court's jurisdiction, I would have dismissed it as an abuse of process under r.13.10(c) of the Federal Magistrates Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  9 July 2007