SZBVC v Minister for Immigration - [2006] FMCA 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBVC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 834

MIGRATION – RRT decision – application for judicial review of decision made before 1 December 2005 – previous litigation – application out of time – dismissed as incompetent.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court 2001, rr.10.06, 44.05
Migration Act 1958 (Cth), ss.5, 5E, 476, 476(1), 477, 477(3), 483A, 486I
Migration Litigation Reform Act 2005 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Rahman v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 448
Shergold v Tanner (2002) 209 CLR 126

Applicant:

SZBVC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1069 of 2006

Judgment of:

Smith FM

Hearing date:

26 May 2006

Delivered at:

Sydney

Delivered on:

26 May 2006

REPRESENTATION

Counsel for the Applicant:

Mr T Rickard

Solicitors for the Applicant:

Mr Saba El-Hanania, Slattery Thompson Solicitors

Counsel for the First Respondent:

Ms E Palmer

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed as incompetent.
The applicant must pay the first respondent’s costs in the sum of $1,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1069 of 2006

SZBVC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed in this court on 10 April 2006 under r 44.05 of the Federal Magistrates' Court Rules. It applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Refugee Review Tribunal dated 29 January 2002 and handed down on 21 February 2002.
In a supporting affidavit, the applicant deposes:
On or around 21 February 2002, I attended the handing down of my decision at the Refugee Review Tribunal….
He attaches a copy of the decision, which reveals that the Tribunal affirmed a decision taken by a delegate on 30 June 2000, refusing an application for a protection visa lodged by the applicant on 24 March 2000. The applicant had arrived in Australia on a student visa in 1999.
The applicant's present application, as is required by the prescribed form, identified previous proceedings in this court brought by the applicant in relation to the same Tribunal decision, and gave the file number of those proceedings: SZ 2365 of 2003. I referred to the contents of that file in the course of this morning's hearing, and showed its contents, insofar as they are not confidential, to the applicant's counsel.
The file indicates that the previous application for judicial review of the Tribunal's decision was filed on 5 November 2003. It contained inadequate grounds of review, being:
The Second Respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s 91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the applicant.
The second respondent's findings as to the credibility of the applicant's claims was not supported by any probative evidence and was so unreasonable that no reasonable tribunal could have so found.
No particulars of these contentions were given in the application.
At a first court date on 18 March 2004, the Registrar set the matter down for hearing, and ordered the applicant to file an amended and particularised application and any evidence in support. The file shows that he never filed such a document. A hearing was fixed for 12 September 2005, and I note that hearing fees are still outstanding.
On 8 September 2005 the applicant sent to the court a facsimile notice of discontinuance, and subsequently he signed consent orders for the dismissal of the proceeding with costs. These orders were approved by FM Driver on 12 September 2005.
As I have indicated, the applicant has now commenced a second proceeding seeking orders of the same nature in relation to the same decision. The application he has filed reveals a similar lack of merit, insofar as it lacks essential particulars showing arguable substance. The grounds set out in the application are:
1. The second respondent misconstrued and misapplied s 91R of the Migration Act 1958.
2. The second respondent misconstrued and misapplied s 424A of the Migration Act, which amounted to a jurisdictional error of law.
The applicant’s affidavit appears to me to have been witnessed on 7 April 2006 by his present solicitor, Mr Saba El-Hanania, of Messrs Slattery Thompson, but the application itself was commenced by the applicant acting for himself. It therefore was not required to be accompanied by a certificate of reasonable prospects under s.486I of the Migration Act.
The applicant’s affidavit did not refer to his signing of a notice of discontinuance and a consent to dismissal of his previous application. Instead, he swore that he did not know why his case had been “refused”, and claimed: “I have not been given the opportunity to represent my case at the Federal Magistrates Court”.
As I have noted, the present application did not show a legal representative acting for the applicant on the Court’s record. However, at the first court date on 23 May 2006, Mr T Rickard of counsel appeared, instructed by Messrs Slattery Thompson, as he informed the Court. I note that a notice of appearance by that firm was not filed until this morning.
At the first court date, I drew Mr Rickard’s attention to the admission by the applicant that he had received actual notification of the Tribunal's decision prior to 1 December 2005. I suggested that he should consider the effect of s.477 of the Migration Act as inserted by the Migration Litigation Reform Act 2005 (Cth), and the transitional provision in relation to challenges to decisions made before 1 December 2005, which is found in Sch.1 cl.42 to the amending Act.
These provision provide:
477 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.
42 Transitional provision—migration decision made before commencement day
Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)     section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.
The commencement day for these provisions was 1 December 2005.
Under Sch.1 cl.28 of the amending Act, the Court's previous jurisdiction in relation to migration decisions conferred by then s.483A was repealed. The Court therefore no longer has jurisdiction to entertain applications under that section, except in relation to pending matters continued by force of the Acts Interpretation Act 1901 (Cth), s.8.
The consequence is that the Court's jurisdiction under s.476 is subject to a time limit in relation to proceedings such as the present concerning decisions made before the commencement. The combined effects of s.477 and cl.42 is that the decision is deemed to have been actually notified to the applicant on 1 December 2005, and time will run from that date, but only if the Court can be satisfied that “actual notification of the decision (was) given before” that date. Taking into account the 28 days, plus 56 days referred to in s.477, this means that applications in relation to decisions published and actually notified before 1 December 2005 are incompetent if they are filed in the court on or after Friday, 24 February 2006.
In my opinion, based on established authority in relation to the previous time limit on the Federal Court’s jurisdiction, it is clear that s.477(3) removes any inherent, or other powers, of the Court to extend that time, and that the time limit is intended to be mandatory (see Rahman v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 448).
In view of the applicant's admission as to his actual receipt, the present application appeared plainly incompetent and deserved to be dismissed on that ground. I suggested this to Mr Rickard, but allowed him some days to consider the point and to take instructions. I adjourned the matter to today, and made clear that I would be determining the question of competence today. Mr Ricard tells me that he so advised his instructing solicitor by letter.
Mr Ricard appeared today, without the support of his client or instructing solicitor, and sought an adjournment of the matter.
One basis of his adjournment request was the claim, unsupported by affidavit or other evidence, that his instructing solicitor had spoken to my associate (who was unaware what had transpired in court at the first court date) at about four p.m. yesterday, and that the solicitor thought, as a result of that conversation, that the matter was listed only for directions today.
According to my associate's file note of her conversation with Mr El Hanania, he told her that “he has just been instructed in this matter”, and that “he is seeking a two-week adjournment of tomorrow’s directions hearing”. Her note records her telling him that “in view of the late application for adjournment, I asked him to appear tomorrow and make his application then.” After consulting me when I returned from court, she sent an urgent facsimile to Mr El Hanania’s office at 4.50 p.m., and spoke to his receptionist and a colleague, confirming my statements to Mr Rickard that the matter was listed for hearing on the question of jurisdictional competence, and that this issue would be addressed at the directions listing. However, Mr Rickard claimed that Mr El Hanania only became aware of the purpose of today’s listing when he saw my associate's facsimile this morning.
I have some concerns that these matters were being said from the Bar table, without any evidence, and without the presence of the solicitor who claimed to have been misled by my associate. Mr Rickard did not claim that he was, himself, under any misapprehension that I intended to address the jurisdictional competence of his client’s application today. Nor was he able to point to any particular prejudice arising from Mr El Hanania's claimed misapprehension between 4 p.m. yesterday and his arriving at his office this morning. As I have indicated above, he agreed that he had informed his instructing solicitor of what I had said at the first court date, and did not claim that Mr El Hanania did not receive his letter.
In my opinion, Mr Rickard and his instructing solicitors have had sufficient time since Tuesday to consider, at least, whether they can point to any argument of merit on the question of jurisdictional competence which could justify a further adjournment of the proceeding. Given the applicant’s prior litigation history, and Mr El Hanania’s apparent involvement in the present matter since (at least)
7 April when he witnessed his client’s affidavit, I do not consider that the matter should be adjourned in the absence of such an argument.
Mr Rickard was unable to point to any argument of merit which could show jurisdiction. Without citing any authority, and without any attempt at elaboration, he submitted that there might be a point of construction of the Migration Act, which would show that s.477 was inapplicable in relation to a decision of a Tribunal affected by jurisdictional error.
He said that he was not instructed that his client wished to take any point as to the Constitutional validity of s.477. In this respect, I note that no notice raising a Constitutional issue has been filed in the proceeding under Federal Magistrates Court r.10.06, and that it would appear difficult to contend that Parliament could not by clear language confine this court’s statutory jurisdiction by a time limit (c.f. Rahman (supra) at [18], and Shergold v Tanner (2002) 209 CLR 126 at [20], [26] and [34]).
In my opinion, the Migration Act, as amended from 1 December 2005, clearly indicates that the time limit under s.477 is applicable equally to proceedings concerning a Tribunal decision which is alleged to be invalid by reason of jurisdictional error, as to other decisions of the Tribunal which are not so affected. Provisions to make this clear were inserted to overcome the interpretation of “privative clause decision” taken in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476.
As I have recounted above, s.477 applies expressly to all proceedings brought in the Court's jurisdiction under s.476(1). That jurisdiction is, subject to exclusions which it is unnecessary to consider, described as “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”.
The reference in s.476(1) to “migration decisions” is to a term defined in s.5:
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
The reference to “a purported privative clause decision” is to that term defined in s.5E:
5E Meaning of purported privative clause decision
(1)     In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a)     a failure to exercise jurisdiction; or
(b)     an excess of jurisdiction;
in the making of the decision.
(2)     In this section, decision includes anything listed in subsection 474(3).
In my opinion, these definitional provisions clearly expand the Court's jurisdiction under s.476(1) to encompass a legally invalid decision, and thereby to allow the Court to give a remedy for a decision affected by jurisdictional error. They also have the consequence that the limit on this Court's s.476(1) jurisdiction imposed by s.477 applies to such a proceeding.
Mr Rickard was unable to make any submission addressing the language of any of the above provisions, to suggest any remotely arguable point of construction which could help his client.
For the above reasons I consider that the present application is unarguably incompetent. I can see no purpose in allowing any further adjournment. In view of the history of litigation engaged in by this applicant, which I have set out above, I consider it is appropriate that the matter should be dismissed today, without allowing him the indulgence of any further adjournment.

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

Associate: Iliya Marovich-Old

Date: 9 June 2006