SZASD v Minister for Immigration - [2004] FMCA 472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASD v MINISTER FOR IMMIGRATION

[2004] FMCA 472

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – finding by the RRT that it lacked jurisdiction as the application to the RRT had been withdrawn – subsequent claim by the applicant that she did not intend to withdraw her application – confirmation by the RRT of its decision on jurisdiction – the RRT correctly found that the review application had been withdrawn and that therefore it lacked jurisdiction – application dismissed.

COSTS – Refusal of a costs order where the presiding member’s reasons not provided to the applicant and not included in the court book.

Migration Act 1958 (Cth)

Boal Quay Wharfingers Limited v King’s Lynn Conservancy Board [1971] 1 WLR 1558
Christie v Neaves (2001) 113 FCR 279
Raru v Minister for Immigration (1993) 119 ALR 314
Re Minister for Immigration v Palme [2003] HCA 56
Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3) (1992) 28 ALD 368
Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412
Uniden Australia Pty Ltd v The Collector of Customs (1997) 74 FCR 190

Applicant:

SZASD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ987 of 2003

Delivered on:

29 July 2004

Delivered at:

Sydney

Hearing date:

29 July 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J D Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
There is no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ987 of 2003

SZASD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision or decisions of the Refugee Review Tribunal (“the RRT”) made in early May 2003. The circumstances are somewhat unusual. The relevant background facts are set out in written submissions prepared on behalf the Minister by Mr Smith. I adopt paragraphs 1-11 of those written submissions for the purposes of this judgment:
This is an application for review of a decision of the RRT that the RRT did not have jurisdiction to review a decision of a delegate of the respondent. The delegate refused to grant the applicant a protection visa.
The ground of the application is that the RRT made a mistake in finding that the applicant had withdrawn her application for review.
On 8 August 2002 the applicant lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa. On 20 August 2002 a delegate of the respondent made a decision refusing to grant the applicant a protection visa and on 12 September 2002 the applicant lodged an application with the RRT for review of the delegate’s decision. The issue in the proceedings arises out of the circumstances which followed the lodging of the application.
On 29 January 2003 the RRT sent the applicant a letter inviting her to attend a hearing to be held by the RRT on 27 March 2003. The applicant’s adviser completed a “Response to Hearing Invitation” indicating that the applicant did not want to come to the hearing. The RRT then wrote to the applicant by letter dated 25 February 2003 indicating that it had made its decision and that it would hand down that decision on 14 March 2003.
By letter dated 4 March 2003 Mr John Groves indicated to the RRT that he was a friend of the applicant, that the applicant had been unaware of the invitation to the hearing and asking the RRT to re‑schedule the “Review” to Melbourne because the applicant had moved there. It appears that the applicant nominated Mr Groves as the authorized recipient in place of her erstwhile migration agent.
The RRT accepted this request and set down 1 May 2003 as the hearing date, at first incorrectly nominating Sydney as the place of the hearing. Mr Groves then sent a “Response to Hearing Invitation” to the RRT on behalf of the applicant indicating that the applicant wished to attend the hearing in Melbourne on 1 May 2003. By letter dated 10 April 2003 (showing her home address to be that of Mr Groves) the applicant informed the RRT that both her migration agent as well as Mr Groves would be attending the hearing in Melbourne. That letter was stamped by the RRT as having been received by it on 22 April 2003.
On 30 April 2003 the RRT received a letter dated 29 April 2003 by facsimile from John Groves. In that letter Mr Groves wrote:
Please find attached a copy of a Request to Withdraw Application from [the applicant] re the proposed Tribunal Review scheduled for May 1, with apologies for the short notice on this withdrawal.
Attached to that facsimile was a document entitled “Request to Withdraw an Application for a Review before Refugee Review Tribunal” which was apparently signed by the applicant, dated 29 April 2003 and included the following typed statement:
I wish to withdraw my application to the Refugee Review Tribunal for a review of the decision made on my application for refugee status.
On its face this was an unambiguous withdrawal of the application for review.
On Friday 2 May 2003 the RRT received a facsimile from Orchid SIT on behalf of the applicant. That facsimile said:
As we discussed over the phone today, [the applicant] did not want to withdraw her application with RRT. When she signed on the Withdrawal Request, because she did not know English very well, she did not know what it was. After being told by her friend, she realized that she wanted to stop that letter. She would like to continue her application with RRT until there is a decision. She has authorized me to be her agent and we hope that her application can be continued. Thank you for your attention.
On the same day the RRT received an authorization to act, again apparently signed by the applicant, and dated 2 May 2003. The following Tuesday, 6 May 2003, the RRT wrote to the applicant and to her last nominated agent stating that the RRT did not have power to consider the merits of the application because the application had been withdrawn. The reasons simply state that the applicant had withdrawn the application for review and therefore the RRT had no valid application before it. There was no reference in that decision to the document dated 2 May 2003.
In addition, I note that I received into evidence an affidavit by Ishan Fouhard Muthalib made on 27 July 2004. That affidavit annexes a file note purportedly prepared by the presiding member on 5 May 2003. In that file note the presiding member gives reasons for his decision apparently made on that day not to re-visit the decision of the RRT apparently made on 1 May 2003 that the RRT had no jurisdiction to consider the applicant's review application.
I have treated the application for judicial review as an application to review the two decisions of the RRT on 1 May 2003 and 5 May 2003. I assume for the purposes of these proceedings that I have jurisdiction to review both decisions. The applicant raises what at first blush appears to be a relatively straightforward point. She states that her purported request to withdraw her application to the RRT was not valid. She states that she did not know what she was doing. I understand the application to be, in effect, proposing that the RRT should have accepted the explanation offered by Ms Orchid Sit on 2 May 2003 and reinstated the application.
The applicant was not legally represented before me and has no legal training. In the circumstances, I have considered myself what legal issues might arise. I took submissions first from Mr Smith and explored what appeared could be the legal issues at some length with him. I considered whether the RRT had breached any relevant provision of the Migration Act 1958 (Cth) (“the Migration Act”).
I concluded that the provisions set out in ss.430, 430A and 430B had no application to the two decisions of the RRT. That is because those provisions apply to a decision on a review of an application to the RRT. It is clear from the reasons for the RRT decision on 1 May 2003 that at that time the RRT found that there was no review application before it. The application had been withdrawn. As at 1 May 2003 there was nothing before the RRT to cast any doubt on that conclusion.
On 2 May 2003 the issue being pursued by the applicant was raised by Ms Orchid Sit, the third of three migration agents engaged by the applicant. It appears from the file note prepared by the presiding member that the presiding member concluded that the assertions made on behalf of the applicant by Ms Sit were not credible. Having determined that the assertions made on behalf of the applicant were not credible the presiding member declined to alter the decision made on 1 May 2003.
I conclude that none of the provisions of the Migration Act relating to decisions on a review of an application had any application to either decision of the RRT, provided that the RRT was correct in its determination that there was no review application before it.
The second issue I considered was whether the proceedings, to the extent that there were proceedings before the RRT, were fair. It is clear that the applicant was invited to a hearing before the RRT on

1 May 2003. She initially accepted that invitation and then subsequently purported to withdraw her review application. The RRT accepted that withdrawal on 1 May 2003. Reasons were given to the applicant by letter dated 6 May 2003 (court book, page 76). By letter dated also 6 May 2003 (court book page 75) the RRT advised the applicant of the presiding member's decision made on 5 May 2003, although the date of that decision is not set out in the letter. Neither does the letter contain the reasons for the presiding member's decision contained in his file note of 5 May 2003.
There was no statutory obligation upon the RRT to give reasons for the decision on 5 May 2003, on the assumption that this was not a decision on a review. Neither was there any obligation on the RRT under the general law to give reasons for that administrative decision. Good administrative practice might indicate that it was desirable to give reasons but the failure to do so does not point to any jurisdictional error. I draw support for that conclusion from a decision of the High Court in Re Minister for Immigration v Palme [2003] HCA 56.
The remaining question, and the most significant question, for me to resolve is whether the RRT was correct in finding that it had no jurisdiction to consider the review application. Mr Smith submits, and I accept, that that question is one for this Court to resolve. Mr Smith deals with this question in his written submissions from paragraph 12-19. I accept those submissions:
It is a principle of the common law that, unless constrained by statutory considerations effectively abrogating or fettering the right to unilaterally withdraw from an application in a civil matter to a statutory tribunal, any such applicant has an inherent right to withdraw such application at any time before a decision is given by the RRT. The consequence flowing from such principle is that any such application so purportedly withdrawn is no longer subsisting or effective, and the statutory tribunal is deprived accordingly of the power to make any order in connection with the application, subject to some exceptions: Boal Quay Wharfingers Limited v King’s Lynn Conservancy Board [1971] 1 WLR 1558; Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412; Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3) (1992) 28 ALD 368; Uniden Australia Pty Ltd v The Collector of Customs (1997) 74 FCR 190; Christie v Neaves (2001) 113 FCR 279.
There is nothing in the context of the Migration Act which abrogates this common law right. Indeed, so much appears to have been accepted by Burchett J in Raru v Minister for Immigration (1993) 119 ALR 314.
Accordingly, the question is whether there was effective withdrawal of the application. In Raru Burchett J considered whether withdrawal of an application had been effective. However, the decision in that case turned upon whether the person with authority to make the actual decision had been alerted to the withdrawal. That is different to the current circumstances where the RRT member was clearly aware of the withdrawal dated 29 April 2003. Indeed, that appears to have been the only basis for the decision.
In Uniden Australia Pty Ltd v The Collector of Customs (1997) 74 FCR 190 Foster J considered a submission that the Tribunal there had improperly failed to consider whether there was an ineffective withdrawal. His Honour rejected that argument on the basis that it was not open on the facts before him but stated that he could envisage “circumstances where a submission based upon a withdrawal of a claim being effective through its being vitiated by some factor such as fraud or misrepresentation might be successfully raised” (at 202). Conti J also referred to certain exceptions (although not by name) in his decision in Christie v Neaves (2001) 113 FCR 279 at 283. One of those exceptions may be where the withdrawal prejudices a third party: see for example, Re: Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority & Ors (1992) 28 ALD 368.
There is no question here of prejudice to any third party and there appears to be no evidence which would substantiate fraud.
In the letter dated 6 May 2003 [court book, page 75] the RRT reports that:
The member is satisfied that the request of 30 April 2003 by the applicant to withdraw her review application is a valid one.
The reason put forward for the revocation of the withdrawal is that the applicant did not understand what she was doing when she signed the withdrawal request. That explanation is at odds with the following sentence:
After being told by her friend (which must be a reference to Mr Groves) she realized that and she wanted to stop that letter.
It is unlikely that the person who filled out the form and sent it to the RRT (having had it signed by the applicant) only later explained to the applicant its force and effect. It is clear that Mr Grove had at least on a number of occasions communicated with the applicant: he had taken instructions from her, had been authorized by her to receive communications, and was living at the same address as her.
On the basis of the evidence before me I am bound in my view to reach the same conclusion as that reached by the presiding member on 5 May 2003. That conclusion is that contrary to the assertions of Ms Orchid Sit on 2 May 2003, the withdrawal of the review application was a conscious and considered act by the applicant. The application having been withdrawn, there was no valid application before the RRT to review. It necessarily followed that the RRT had no jurisdiction to review anything. It appears from Ms Sit's letter that the applicant may have changed her mind after submitting her withdrawal to the RRT, however, it was then too late.
In that regard, I note that I accepted the letter from Ms Sit as evidence only of her instructions which she communicated to the RRT. I did not accept that letter as evidence of the truth of the assertions contained in it. I note that on 23 July 2003, directions in the proceedings in this Court were given by Registrar Tesoriero. The applicant consented to an order that she file and serve any evidence on which she intended to rely on or before 17 October 2003. The applicant has not presented any evidence in compliance with that order. She did speak to me today from the bar table. She asserted that the RRT did not understand what she wanted to do. I reject that proposition. The RRT understood perfectly well what the applicant was doing and found correctly that the applicant herself understood what she was doing.
The applicant also asserted from the bar table that she did not receive the documents contained in the court book. I do not believe that broad proposition. The applicant also asserted that she did not know who Orchid Sit is. She also told me that she had paid $25,000 to a person called Eddie in three payments commencing in June 2003. The purpose of those payments was apparently to enable Eddie to find someone to assist the applicant in her proceedings in this Court. If that was the purpose, the purpose has not been fulfilled. The applicant made no other statements to me. The statements made provide no basis for me to reach a different conclusion from the one that I have reached. The applicant's statements from the bar table also led me to the view that there would be no point in giving the applicant a further opportunity to produce evidence in support of her claims.
The conclusion I draw is that there is no jurisdictional error in either the decision of the RRT on 1 May 2003 or the decision of the RRT on 5 May 2003. Both decisions are privative clause decisions.
Accordingly, I must dismiss the application.
On the question of costs, Mr Smith seeks an order for costs and tells me that the solicitor and client costs of the Minister are in the order of $6,500. On a party and party basis, this reasonably calls for a costs order between $4,000 and $5,000. The applicant submitted that she is impecunious but that is not a reason for the Court to refrain from making a costs order. I put to Mr Smith that I was not minded to make a costs order for two reasons. The first was that the presiding member's reasons dated 5 May 2003 were not provided by the RRT to the applicant. I put the proposition that if those reasons had been provided, the application to the Court might not have been necessary. Secondly, I noted that those reasons were not included in the book of relevant documents. They should have been and the exclusion deprived the applicant of an opportunity to consider her position in the legal proceedings in the knowledge of all relevant documents. Mr Smith submitted that those considerations did not disentitle the Minister to a costs order. Mr Smith submits that it was always for the court to determine the issue of the RRT’s jurisdiction and therefore the reasons for the presiding member's decision on 5 May 2003 could not be determinative of the outcome.
I accept that it was for the Court to decide the issue of the RRT’s jurisdiction. That was, in essence, the issue raised on the judicial review application. The applicant was unsuccessful on the application and in the ordinary course, costs should follow the event. Nevertheless, I am troubled that the failure by the RRT to give reasons for its decision on 5 May 2003 left the applicant in the dark. In the absence of reasons, she did not know whether there was any logical basis for the RRT’s decision. Those reasons were not made available to the Court until shortly before the trial and the reasons were not received as evidence until today.
While those reasons could not be determinative of the outcome, the conclusion I have reached is the same as that reached by the presiding member in those reasons. If the applicant had been made aware of those reasons, she would have had an opportunity to consider her position more properly. In the light of my concerns, I have decided not to make a costs order.
I order that the application is dismissed and that there is to be no order as to costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 August 2004