SZAKP v Minister for Immigration
[2006] FMCA 809
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKP & ORS v MINISTER FOR IMMIGRATION | [2006] FMCA 809 |
| MIGRATION – Refugee – review of the delegate’s decision – failure to attend court hearing – application dismissed for abuse of process and no reasonable cause of action – application for re-instatement pursuant to rule 16.05 – application dismissed. |
| Migration Act 1958, ss.65, 66(4), 54, 57(1)(b), 51A, 501G, 501G(2), 501G(4) |
| Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 Minister for Immigration and Multicultural and Indigenous AffairsvAhmed [2005] FCAFC 58 NAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 783 Twist v Randwick Municipal Council (1976) 136 CLR 106 SZGMZ vMinister for Immigration [2005] FMCA 1549 Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211 NAMG v Minister for Immigration (No. 1) [2003] FMCA 541 Re: Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme [2003] HCA 56 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZAKP & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 3107 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 May 2006 |
| Date of Last Submission: | 9 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. Sim/ Ms. Zarucki |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application made on 9 May 2006 is dismissed.
The first and second applicants pay the respondent’s costs set in the amount of $450.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3107 of 2005
| SZAKP & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex tempore: revised from transcript)
I have before me an application filed in this Court on 9 May 2006 seeking, pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”), that orders, made on 5 May 2006, dismissing an earlier application (“the originating application”) filed by the same applicants, be set aside. The originating application filed on 25 October 2005 sought review of the decision of a delegate of the respondent Minister made on 8 February 2000 to refuse protection visas to the applicants. I should note that this application named the delegate as the first respondent and the Minister for Immigration and Multicultural and Indigenous Affairs as the second respondent. I subsequently made orders that the delegate be removed as a party and the Minister be referred to as the Minister for Immigration and Multicultural Affairs.
The applicants (before the Minister’s delegate and in the originating application to this Court) are husband, wife and their two children who all claim to be citizens of Bangladesh and who arrived in Australia on
5 January 2000 and sought protection visas. The applicants’ history as it relates to pursuit for recognition as refugees in Australia is summarised in a chronology set out at paragraph 1 of the respondent’s outline of submissions, filed on 21 April 2006, with reference also to the affidavit of Svetlana Zarucki, an employee of the respondent’s solicitors, sworn on 28 November 2005, which reveals:
DATE
EVENT
5 January 2000
The Applicants arrive in Australia.
25 January 2000
Application for Protection (Class XA) visas lodged.
8 February 2000
Delegate of the Respondent refuses grant of protection visas.
29 February 2000
Applicants apply for Refugee review Tribunal (“RRT”) review of the delegate’s decision.
12 March 2003
RRT decision made.
3 April 2003
RRT decision handed down (see annexure “A” of the affidavit of Svetlana Zarucki sworn 28 November 2005 (“the “Affidavit”)).
28 April 2003
Application under Judiciary Act 1903 and Migration Act 1958 filed by the applicant (see annexure “B” of the Affidavit).
30 June 2004
Driver FM dismisses the application with costs (see annexure “C” of the Affidavit).
19 July 2004
Notice of Appeal filed by the applicants.
29 October 2004
Whitlam J dismisses the appeal with costs (see annexure “F” of the Affidavit).
23 November 2004
Application for special leave to appeal filed by the Applicants in the High Court of Australia (see annexure “H” of the Affidavit).
23 May 2005
The application for special leave to appeal is abandoned (see annexure “I” of the Affidavit).
8 June 2005
A further application for special leave to appeal is filed by the Applicants in the High Court of Australia.
7 October 2005
The application for special leave to appeal is deemed abandoned (see annexure “J” of the Affidavit).
25 October 2005
The Applicants commence the current proceedings.
The matter first came on before me on 5 May 2006 for the hearing of the respondent’s Notice of Motion filed on 29 November 2005, seeking summary dismissal of the application for judicial review on the grounds that pursuant to rule 13.10 of the Rules no reasonable cause of action, or basis for the application, was disclosed. Further, or in the alternative, the proceedings were frivolous or vexatious, and even further or in the alternative, that the proceedings were an abuse of the process of the Court.
When the matter came on before me on 5 May 2006 the Minister was represented by Mr. Sim. The applicants did not appear. The matter was called both outside the relevant Court room, and in the foyer of the building (the John Maddison Tower). I was satisfied that the applicants had notice of the matter to be heard on that date. The applicant husband had appeared, with the assistance of a Bengali interpreter, before a Registrar of the Court at the first Court date on 29 November 2005, and signed Short Minutes of Order which subsequently became orders of the Court, which amongst other matters, granted leave to the respondent to file a motion for summary dismissal. The respondent subsequently took this step, and provided notice to the applicants by letter, dated 6 December 2005, which importantly also included notice that a failure to attend could result in summary dismissal of the application (see Respondent’s Exhibit 1 (“RE1”)). Mr. Sim also tendered a letter dated 21 August 2006 that had been sent to the applicants, enclosing the respondent’s written submissions and again notifying the date for the summary dismissal hearing (“RE2”). Further, while it appeared, subsequently confirmed, that the applicant wife had made some attempt to contact the Court and the respondent’s solicitors by telephone on the day of the hearing (see below) there was nothing before the Court indicating a difficulty, or inability, of the applicant husband (who had appeared at the first Court date) to attend the hearing.
I was satisfied on the basis of the applicant husband’s attendance at the first Court date, and the respondent’s letters (“RE1” and “RE2”) that the applicants had proper and reasonable notice of the hearing on 5 May 2006 of the respondent’s Notice of Motion. While the Court was aware that a telephone call had been received from the applicant wife indicating that she was ill, none of this had been put before the Court in any proper evidentiary context, nor was the Court aware that such illness would prevent the applicant wife from attending. [As it subsequently transpired the applicant wife’s later evidence was that she did attend the Court building, but was unable to locate the relevant Court]. In any event and significantly however, there was nothing before the Court on 5 May 2006 to indicate any difficulty, or inability, on the part of the applicant husband to attend. It was the applicant husband only who had signed the application to the Court (while recognising that the applicant wife was still an applicant) and who had attended previously at the first Court date, such as to indicate that he was taking the lead in pursuing the matter before the Court. Mr. Sim for the respondent pressed that I should proceed with the hearing pursuant to rule 13.03A, and then dismiss the application. I agreed with Mr. Sim’s submissions that the matter should proceed on that day.
On that day the applicants had not made an appearance and there was no explanation or even attempt by or on behalf of the applicant husband to provide any reason for his absence from the Court. The applicant wife’s attempt to explain her non-attendance was unsatisfactory. Nothing relevant was put to the Court in relation to the applicant children. But further, in my view there was no reasonable cause of action before the Court. I was satisfied in all the circumstances that it was appropriate that I proceed summarily and made orders dismissing the application.
In dismissing the application summarily I note in this regard that the application before me that day was made pursuant to the Administrative Decisions Judicial Review Act 1977 (“the AD(JR) Act”), the Judiciary Act 1903 and Migration Act 1958 (“the Act”). This Court does have jurisdiction generally under the AD(JR) Act to review migration decisions. However, this must be seen in the light of what the High Court said in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157/2002”) at [97]:
“It also is to be noted that changes were made by the Amending Act to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Amending Act inserted par (da) in Sched 1 to the ADJR Act. Section 3(1) of the ADJR Act contains a definition of "decision to which this Act applies", which identifies decisions of an administrative character made, proposed to be made or required to be made under certain enactments, but excluding decisions included in any of the classes of decision set out in Sched 1. The par (da) of Sched 1 inserted by the Amending Act specifies:
‘a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’
Questions may arise respecting the construction of the ADJR Act and its application to decisions which are not privative clause decisions and in which jurisdictional error is relied upon...”
The High Court found that the exclusion of jurisdiction to review privative clause decisions under the AD(JR) Act would not apply in the case of a decision infected with jurisdictional error. The issue therefore in this regard, and in the case before me, is to determine whether the delegate’s decision contains jurisdictional error. In this case however, this issue is subject to the consideration as to whether even if infected by any error, such error in the delegate’s decision would in any event be “cured” by the merits review by the Tribunal of the delegate’s decision.
The applicant husband asserted in the originating application that he was aggrieved because:
“1. The decision was not made according to law.
2.The decision failed to observe the prescribed method of delivering a decision.
3.The delegate did not have the power to give that decision to the applicant.
4.The decision was infected by jurisdictional error and breach of procedural fairness.”
The specific grounds of the application to support the orders claimed by the applicant were expressed to be:
“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 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 give the decision. The Minister does not have a power to take this decision into effect.
3.The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4.The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (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 Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292,
SZCTH v Minister for Immigration (No.1) [2004] FMCA 211
NAMG v Minister for Immigration (No. 1) [2003] FMCA 541”
As indicated above, the respondent filed an outline of submissions on 21 April 2006. The applicants had not filed anything further in relation to the application. On 5 May 2006, Mr. Sim for the respondent relied on the respondent’s written submissions which essentially were:
1)That the Court should not hear a challenge to a “primary” (delegate’s) decision where there is a “de novo review decision”, because the review decision “cured” the primary decision: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 (“Wu”), Wilcox J., at 298-299.
2)A valid Tribunal decision will “cure” the primary decision (even one infected with jurisdictional error): Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (“Yilmaz”), Gyles J at [92]-[96] Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, Minister for Immigration and Multicultural and Indigenous AffairsvAhmed [2005] FCAFC 58 and NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 783 (I took this to be a reference to NAWW v Minister for Immigration [2005] FMCA 783).
3)The respondent also noted that the term “cured” has not been defined but that “the metaphor had been adopted at the highest judicial levels”, and in this regard referred to Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J., at 116.
The applicants appear to challenge the delegate’s decision on the following bases:
(1)That the making of the decision was infected by error of law and that a breach of the rules of natural justice occurred in connection with the making, and notifying, of the decision.
(2)That the delegate who purported to make the decision did not have jurisdiction “to give the decision”.
(3)That the Court has jurisdiction to review this “late” application which complains about the delegate’s decision.
Despite opportunity, the applicants have put forward nothing further to support the application. The application was filed on 25 October 2005. The first Court date on 29 November 2005 would have alerted the applicants of some of the specific difficulty they face in now challenging the delegate’s decision, following the long litigation history of the challenge to the Tribunal’s decision which after all was based on a merits review of the refugee claims, the subject of the application also considered by the Minister’s delegate. Despite an order made that they file submissions, nothing has been put before the Court. The applicants have had over 6 months to support their application to the Court. Nothing has been forthcoming.
The relief sought by the applicants is:
“The applicant claims…
1.An order and or declaration that the notification by the delegate of the Minister to refuse to grant a protection visa is invalid and has no effect.
2.An order and or declaration that the decision by the delegate of the Minister has no effect.
3.An order to redirect this matter to DIMIA to notify the applicant according to law.
4.An order not to remove the applicant from Australia while the decision is pending.
5.Costs. And
6.Any further order that this Honourable Court may deem appropriate.”
At the hearing I was of the view that the Minister's arguments, that the application before me is an abuse of process, should be accepted on the following basis.
The application seeking relief in relation to the delegate’s decision should be refused at a final hearing because such relief would serve no legal purpose, and would be futile. I accepted the respondent's submission that even if there were any jurisdictional errors affecting the decision of the delegate it was cured by the decision of the Tribunal which has been held ultimately on appeal in the Federal Court (see annexure “F” to the affidavit of Svetlana Zarucki) not to be invalid.
In this regard I noted Wilcox J. in Wu at [298]-[299]:
“The decision is invalid because the decision maker failed to take into account relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision would initially to have been made and who has taken into account relevant matter, the initial defect may reasonably be regarded as “cured”.”
Further, that a Tribunal decision will cure a delegate’s decision has been approved by the Full Federal Court in Yilmaz and Multicultural and Indigenous Affairs [2000] FCA 906 the Court said at [92]:
“The decision in Alvaro (supra) makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.”
I also noted and relied on the subsequent analysis at [93] to [96] inclusive. Noting the respondent’s referral to the following cases, I accept that there is clear authority that Tribunals have the power to review and reconsider even legally invalid decisions as well as valid decisions of the Minister’s delegate: See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58. I also note the Judgment of Smith FM., in SZGMZ vMinister for Immigration [2005] FMCA 1549, and in particular at [23] and [24]. I read that Judgement and with respect agree with what is set out at those paragraphs, and note the similar factual circumstances before his Honour in that case, with that of the case before me. In particular I note at [23]:
“… In my opinion, the structure of decision-making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision-maker.”
In the case before me, I considered that for the reasons set out above that the application should (even given the caution that is properly attendant in relation to summary dismissal) be dismissed summarily. To allow the applicants to continue beyond this point would serve no real purpose. The applicants have had the opportunity to seek a “de novo” merits review of the delegate’s decision. That opportunity was taken up, and the decision on review was the subject of judicial review proceedings which revealed no flaw or error. In all these circumstances therefore, it is clear that it would be futile to allow further litigation as to whether the delegate’s decision was lawfully made (or notified) or not. It is clear that the Court would decline to give the relief sought by the applicants as to the validity of the delegate’s decision.
In this regard, I also examined the grounds raised in the originating application. The first and second grounds allege a breach of the rules of natural justice, lack of jurisdiction and failure to notify of the delegate’s decision. First I noted that any defect in notification does not affect the validity of the delegate’s decision (s.66(4)) and secondly that in any event, there is nothing before me, nothing has been argued, and nothing arises to show a breach of the rules of natural justice. I noted further that the application filed on 25 October 2005 itself indicates (at page 1) that the delegate’s decision was notified to the applicants (on “8 February 2000”), so that this complaint in itself, as set out in the originating application, is clearly internally contradictory. In this regard when the applicants filed their originating application they also filed a copy of a letter from the delegate, dated 8 February 2000, notifying them of the delegate’s decision and attaching the delegate’s decision record. [The letter bears a reference to a registered post number]. The third ground amounted to an assertion that the decision was infected by an error of law. In this regard nothing was put before the Court in support, and nothing is apparent from reading the delegate’s decision in any event.
The fourth ground acknowledges that the application is late however refers to Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 (“Chan Ta Srey”) and Plaintiff S157 of 2002. Chan Ta Srey is clearly distinguishable from the case before me. It related to an applicant in immigration detention, and the granting of a bridging visa. The Court reviewed the delegate’s decision in circumstances where any error in it would have affected the applicant’s visa status such as to resolve the issue of the lawfulness or otherwise of the immigration detention. There is nothing of this nature in the case before me. The applicants, in the last ground of review, refer to Chan Ta Srey again and SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211 and NAMG v Minister for Immigration (No. 1) [2003] FMCA 541. One was a case where no review had been conducted (by the Tribunal) of the delegate’s decision, and in the other, the Tribunal did not conduct a full merits review because it found that it lacked jurisdiction.
On all these this bases I accepted that it was clear that the application challenging the delegate’s decision would fail. Further, the application before the Court is in all the circumstances an abuse of the Court’s process, and to have allowed the application to continue would constitute prolonging of this abuse. I dismissed the application.
On 9 May 2006 the applicants (now only the applicant husband and wife) filed an application to have the orders made on 5 May 2006 set aside. This was listed for hearing today (16 May 2006). Before me the applicant wife appeared in person. I confirmed with the applicant wife before me that she was representing the interests of her husband. She relied on her affidavit of 9 May 2006 in support of her application to explain her failure to attend Court on 5 May 2006.
Ms. Zarucki, who appeared for the respondent Minister on this occasion, did not object to the reading of that affidavit into evidence. The applicant wife’s evidence was:
1)She “called” the “respondent’s solicitor” on the morning of the hearing to “inform about my sickness”.
2)She attempted to contact the Court but was unable to obtain the number and “at the same time received a call to attend the hearing” from the Court.
3)She explained to a “lady” that she was unable to attend, but that the lady informed her that she had to do so, and although she felt like a “dead person” the lady “insisted”.
4)She attended the John Maddison Tower and “someone on the ground floor” told her to go to level 9.
5)She took a ticket (which was affixed to the affidavit) and waited, and eventually spoke to someone who told her to go to level 6.
6)On level 6 she was directed to level 7 but the Courtroom was closed.
7)That the floor and courtroom number were not on the “letter”
she had received informing her about the hearing.In relation to this evidence Ms. Zarucki submitted that it did not go to explaining the applicant husband’s failure to attend, and that there was no evidence on that point. The applicant wife indicated from the Bar table that her husband was “in fact” with her that day. No evidence has been provided to explain the failure of the applicant husband to attend at the hearing on 5 May 2006. Through her own evidence the applicant wife clearly had knowledge of the hearing. Further, even though the respondent’s letters were addressed to the applicant husband the applicant wife also stated that she received the letter of 21 April 2006 (“RE2”). The applicant husband, as I have set out above, attended at the first Court date, and was sent two letters by the respondent notifying of the date and time of the hearing.
While there were some difficulties with the applicant wife’s evidence, this evidence was not challenged. In all the circumstances, I accepted, for the purposes of the application made pursuant to Rule 16.05 of Rules, the applicant wife’s explanation for her failure to attend on 5 May 2006.
The applicant wife (“the applicant”) confirmed that she was ready to proceed, and would be representing her husband’s interests as well as her own. I gave her an opportunity to say whatever she wanted to put to the Court in relation to the original application, filed on 25 October 2005. The applicant started by asking the Court to explain what it “means to ‘cure’ a decision”, and how the Tribunal’s decision “cured” that of the delegate. I explained the situation. The applicant then continued by complaining that the Tribunal did not think she was a refugee. I explained to the applicant that the Court was not able to re-examine the merits of her refugee claims and tried to convey to the applicant the different function of the Tribunal as to conducting merits review, and the scope and power of the Court in undertaking judicial review. In any event, the applicants were now complaining about the delegate’s decision, and the applicant wife’s reference to the Tribunal could only give rise to some concern (given the extensive litigation history in relation to the Tribunal’s decision) as to the real intent of now challenging the delegate’s decision.
In any event, to assist the applicant, I took her through each ground of review in the application, asked her for comment, and in the absence of any relevant response, explained to her why, in the same way as I addressed the grounds in upholding the respondent’s Notice of Motion on 5 May 2006, the grounds argued had no prospect of success.
In particular, the applicants in my view have no prospects of succeeding in an argument that a failure to comply with notification requirements arising under s.66 of the Act would invalidate a decision made by the delegate. The wording of the application to the Court could be said to refer to such a complaint. The difficulty with the applicants’ assertion in this regard is that pursuant to s.66(4) of the Act, failure to give notification of a (delegate’s) decision does not affect the validity of the decision. The applicants’ “argument” that the failure to notify would invalidate the delegate’s decision must fail in the face of a clear legislative direction to the contrary. In this regard see also Re: Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme [2003] HCA 56 at [41]-[46], although I note the High Court was looking at a different section of the Act than the one relevant to the application before me. In that case the High Court was looking at s.501G of the Act in the context of the exercise of power to cancel a visa conferred by s.501G(2). The Court found, per Gleeson CJ., Gummow and Heydon JJ., at [45], that s.501G(4), regarding the interrelationship between cancellation and notification, contained a stipulation that a failure in notification does not of itself affect the validity of the cancellation. While the Court said that the decision under review, in that case cancellation, (in the case before me the delegate’s decision) may still be reviewed for jurisdictional error that might otherwise arise, the failure in notification, as was required, did not impeach the decision for jurisdictional error in circumstances where there was a stipulation that said that a failure in notification did not of itself affect the validity of the decision. The applicants’ complaints about the notification therefore, and the assertion that the delegate did not have the jurisdiction to “give” the decision, would not serve to show error on the part of the delegate’s decision given the clear stipulation set out in s.66(4) of the Act.
Nor is there anything put forward by the applicants to support the mere assertion of a breach of the rules of natural justice occurring in connection with the making of the decision, or to support the claim that the decision was infected by error of law. On one view of the applicants’ complaints as stated in the application, and in particular looking at the authorities to which the applicants refer, it would appear that the argument is that the failure to properly notify them of the delegate’s decision was in itself the error of law, and that this constituted a breach of the rules of natural justice. If this is the case, and if this is all that is meant by the applicants’ written complaints (in the originating application), then in my view, what is set out above reveals that this is insufficient to show a reasonable cause of action.
But even if the applicants are now seeking to put forward a breach of the rules of natural justice, and an error of law in relation to the making of the decision, as distinct from the notification of the decision, then again I note nothing of any particularly has been put before me by the applicants to support this claim. Nor is anything of this nature evident on the (albeit limited) material before me. Essentially the applicants have only put the delegate’s decision record. On its face there is nothing before me to show that the delegate did not have regard to all the information in the application (s.54 of the Act). The independent information relied upon that was relevant information (at Part B 3.3.1, 3.3.4, 3.3.5, 3.3.6 of the delegate’s decision record) was not information that was specifically about the applicants (s.57(1)(b)). Further to the extent that s.51A (exhaustive statement of natural justice hearing rule in relation to the code of procedure for dealing fairly efficiently and quickly with visa applications) did not become operational until 4 July 2002, there is nothing before me to show that there was any breach of the common law rules of natural justice in relation to the making of the decision.
The relief that the applicants ultimately seek before this Court is discretionary. Even if this matter had been permitted to proceed to a final hearing, I note relevantly the following. The application dated
25 October 2005 which has now come to this Court challenging the delegate’s decision that was made on 8 February 2000, is made well over 5 ½ years later. In this regard I note McHugh J. in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands[60]. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome [61].”
The material before me clearly shows that the applicants have sought merits review of the delegate’s decision, and then made attempts before the Federal Magistrates Court, the Federal Court and further, the High Court to challenge the Tribunal's decision. In my view all of this would provide a clear, separate and discretionary reason for refusing the relief now sought. During that time if the applicants had complaints about the delegate’s decision, it was clearly open to them to have raised those complaints before any of the Courts on the numerous occasions that they went before then. The history reveals not only the unwarrantable delay in seeking the relief specifically sought now, but in the context of what McHugh J. said above, demonstrates a very clear basis for the refusal of the discretionary relief based on their inconsistent conduct. Further it is conduct which may be seen as amounting to acquiescence in the now alleged invalidity of the delegate’s decision. Clearly, it is inconsistent for the applicants to assert that there was some defect of notification of the delegate’s decision, and defect relating to jurisdictional error in the delegate’s decision, when no such assertion has been made before the Courts in the preceding 5 ½ years.
There is clearly a long history relating to the applicants’ conduct in pursuing their application for a visa to remain in Australia. Taking this and the applicants’ experience conducting all the litigation challenging the Tribunal’s decision, I note that the application to this Court is in identical, formulaic terms to a number of other applications seen in this Court challenging the delegate’s decision in circumstances where a subsequent Tribunal decision has been the subject of unsuccessful litigation through the Courts. At the first Court date the applicants were given the opportunity to provide substance to the “formulaic” outline of complaints by way of the filing of submission. While I do appreciate the difficulties faced by applicants from non-English speaking backgrounds in pursuing these matters before the Courts, these applicants have done very little in pursuing this complaint, and indeed in answering the respondent’s Notice of Motion. In all the circumstances, in my view, having seemingly exhausted their challenge to the Tribunal's decision, it is open to draw the clear conclusion that the applicants have now struck upon making an application challenging the delegate’s decision which preceded the Tribunal's decision, as a means of extending their stay in Australia. This is by way, at the very least, of obtaining those bridging visas which can derive as an entitlement depending on the existence of judicial review proceedings, irrespective of the merits of those proceedings.
In light of this, I dismiss the application to the Court to have the orders made on 5 May 2006 set aside. Having accepted the applicant wife’s explanation for the failure to attend on that day, I re-examined the grounds of review and found nonetheless there is no utility in setting aside the orders already made. Having listened to the applicant wife’s submissions and read again the written material (the application and delegate’s decision record) there are no prospects of success in the originating application. To set aside the orders already made can serve no real purpose. I dismiss the current application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 7 June 2006
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