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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 834
Decision Date: 26 May 2006

CaseChat Overview and Summary

The matter before the court was an application brought by SZBVC against the Minister for Immigration. The applicant sought a remedy in respect of a decision made by the Minister that was alleged to be legally invalid. The Federal Court was required to determine whether it had jurisdiction to hear the matter and, if so, whether the application was competent. The court also needed to decide whether the provisions in the relevant legislation expanded its jurisdiction to encompass legally invalid decisions and allow remedies for decisions affected by jurisdictional error.

The court considered the definition of "purported privative clause decision" in the legislation and concluded that these definitional provisions expanded the court's jurisdiction under section 476(1) to encompass legally invalid decisions. The court further found that the limit on its jurisdiction imposed by section 477 applied to such proceedings. The applicant's counsel was unable to make any submission addressing the language of the provisions or suggest any arguable point of construction that could assist the client. Given the applicant's history of litigation, the court found the application to be unarguably incompetent and dismissed it without allowing any further adjournment.

The court's orders were that the application be dismissed as incompetent and that the applicant pay the first respondent’s costs in the sum of $1,250.

Orders

Orders of the court

The application is dismissed as incompetent.

The applicant must pay the first respondent’s costs in the sum of $1,250.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for 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.

Ratio Decidendi

Legal Principle Established

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.