SZCLK v Minister for Immigration - [2006] FMCA 1329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1329

MIGRATION – Refugee – applicant seeking review of delegate’s decision – delegate’s decision “cured” by the subsequent Tribunal’s review – application is an abuse of process – application dismissed.

Migration Act 1958, ss.66, 66(1), 66(2), 66(2)(a), 66(2)(b), 66(2)(c), 66(2)(d), 66(2)(d)(2), 66(4), 476(2)(a), 476(4), 501G, 501G(2), 501G(4)
Federal Magistrates Court Rules 2001, Rules 13.10(b), 13.10(c), 44.06

Applicant:

SZCLK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3579 of 2005

Judgment of:

Nicholls FM

Hearing date:

1 September 2006

Date of Last Submission:

24 August 2006

Delivered at:

Sydney

Delivered on:

8 September 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. Z. Brauer

Solicitors for the Respondent:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $1,600.
The Court’s Registry not accept for filing any further application from the applicant concerning the delegate’s decision, or the Tribunal’s decision, without leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3579 of 2005

SZCLK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The proceedings before me were commenced by an application filed on 7 December 2005 seeking review of the decision of a delegate of the respondent Minister made on 19 June 2003 to refuse to grant a protection visa to the applicant. The applicant asserts on the face of his application to this Court that he was notified of this decision on
21 June 2003.
Before me I also have a Response, filed by the respondent Minister on 4 January 2006, which opposes the application with reference to Rule 44.06 of the Federal Magistrates Court…

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 1329
Decision Date: 8 September 2006

CaseChat Overview and Summary

SZCLK v Minister for Immigration was a case before the Federal Court of Australia concerning an application challenging the validity of a delegate's decision by the Minister for Immigration. The applicant, SZCLK, argued that the decision was invalid due to alleged failures in notification under section 66 of the Act. The Minister for Immigration argued that the Court had no jurisdiction over the decision as it was a primary decision reviewable under Part 7 of the Act, and that the application was an abuse of process.

The primary legal issue before the Court was whether it had jurisdiction to review the delegate's decision. The Minister for Immigration contended that the Court's jurisdiction was barred by section 476(2)(a) of the Act, which excludes the Court's jurisdiction over primary decisions that are reviewable under Part 5, 7, or section 500 of the Act. The Court considered the applicability of the previous case SZCWS v Minister for Immigration, which similarly dealt with a challenge to a delegate’s decision. The Court found that the applicant’s challenge would not succeed as the failure to comply with notification requirements under section 66 of the Act did not affect the decision's validity, as per section 66(4) of the Act. Additionally, the Court concluded that any potential error would be "cured" by the Tribunal’s decision, rendering the relief futile.

In light of the aforementioned reasoning, the Court dismissed the application, finding it to be an abuse of process. The Court further ordered that the application be dismissed, the applicant pay the Minister’s costs, and that the Registry not accept any further applications from the applicant concerning the delegate’s or Tribunal’s decisions without leave of the Court. The Court also amended the name of the first respondent to "Minister for Immigration & Multicultural Affairs".

Orders

Orders of the court

The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

The application is dismissed.

The applicant to pay the first respondent’s costs set in the amount of $1,600.

The Court’s Registry not accept for filing any further application from the applicant concerning the delegate’s decision, or the Tribunal’s decision, without leave of the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, putting this to one side, I note the respondent’s submission that pursuant to s.476(2)(a) of the Act the Court has no jurisdiction in relation to the delegate’s decision because it is a primary decision, as defined in s.476(4) of the Act, as:“(4) In this section: "primary decision" means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed);”The submission was that the Court had no jurisdiction as the delegate’s decision is a privative clause decision, and is reviewable under Part 7 of the Act. This alone, in the respondent’s submission, acts as a complete bar to these proceedings. The application is identical in wording and presentation to what was before me in SZCWS v Minister for Immigration & Anor [2006] FMCA 773 (“SZCWS”) which dealt with relevantly similar circumstances to the case before me now involving a challenge to a delegate’s decision where such a decision has been the subject to merits review and judicial review. In that matter the application was dismissed and leave to appeal was refused subsequently by Jacobson J. on 17 August 2006 (SZCWS v Minister for Immigration & Multicultural Affairs [2006] FCA 1145). The applicant’s complaints in the matter before me now, taken on their face as appearing in the application before the Court, are said by the Minister to be an abuse of process because:1)The applicant's argument that the delegate’s decision is invalid cannot succeed to the extent that it relies on the delegate’s alleged failure to comply with the notification requirements under s.66 of the Act, in that the applicant sought merits review with the Tribunal within the relevant time limits. But in any event, s.66(4) of the Act provides that any failure of notification of the delegate’s decision does not affect its validity.2)Relief in respect of the delegate’s decision would, in any event, be futile and serve no legal purpose given that the applicant sought, and did obtain, a merits review of the delegate’s decision which also was subsequently the subject of litigation before the Courts.3)That there is an unwarrantable delay of more than three years in seeking review of the delegate's decision. I agree with the respondent’s submission that the application now challenging the delegate’s decision in all the circumstances is an abuse of process. In my view, for the reasons set out below, the applicant’s challenge of the delegate’s decision would not succeed. But in any event, if any error could be shown, then any such defect would be “cured” by the Tribunal’s decision. The applicant, in my view, has 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 difficulty with the applicant’s 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 applicant's contention (to the extent that it can be derived from the application to the Court) that the failure to notify would invalidate the delegate’s decision must fail in the face of a clear legislative direction to the contrary.

Ratio Decidendi

Legal Principle Established

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