SZCLK v Minister for Immigration
[2006] FMCA 1329
•8 September 2006
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 |
| SZCWS v Minister for Immigration & Anor [2006] FMCA 773 SZCWS v Minister for Immigration & Multicultural Affairs [2006] FCA 1145 Re: Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme [2003] HCA 56 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2005] FMCA 211 NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541 Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58 SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 SZDCR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1176 |
| 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 Rules 2001 (“the Rules”), namely on the basis that the Court does not have jurisdiction, pursuant to s.476 of the Migration Act 1958 (“the Act”), to review the delegate’s decision, that the proceedings are an abuse of process, that the proceedings are vexatious, and further, or in the alternative, that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.
I also have before me, in support of the Response, the affidavit of Olivia Oi-Lam Mak, a solicitor in the employ of the respondent’s solicitors, sworn on 29 December 2005, which was read into evidence at the hearing before me. The affidavit annexes an exhibit (“OOM-1”) being documentation relevant to the applicant’s application for a protection visa, and his subsequent pursuit of merits review before the Refugee Review Tribunal (“the Tribunal”) and judicial review of this decision before the Courts.
The applicant's history as it relates to his application for a protection visa in Australia, and subsequent review, is summarised in a chronology set out in the respondent’s written submissions of
24 August 2006. The chronology reveals (with reference to the exhibit “OOM-1” to the affidavit of Olivia Mak):“DATE EVENT
30 April 2003 Application for protection visa lodged (Tab 2, pages 1 to 26)
19 June 2003 Date of delegate’s decision (Tab 2, pages 39 to 43)
4 July 2003Applicant applied to the RRT for review of the delegate’s decision (Tab 2, pages 45 to 48)
21 November 2003 Date of RRT’s decision (Tab 2, pages 57 to 73)
12 January 2004 Applicant applies to the Federal Magistrates Court of Australia for review of the RRT decision (Tab 1)
26 September 2005 His Honour Federal Magistrate Scarlett orders that the application be dismissed (Tab 4)
12 October 2005 Applicant files a notice of appeal in the Federal Court of Australia (Tab 5)
23 November 2005 His Honour Justice Wilcox orders that the appeal be dismissed (Tab 6)
7 December 2005 Applicant files an application for review of the delegate’s decision.” (Tab 7)
4 January 2006 First Respondent files response and affidavit of Olivia Oi Lam Mak sworn 29 December 2005.
In his application to this Court the applicant asserts five grounds of review:
“1.A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified of the applicant and therfore the procedures that were required by law to be observed in connection with the making of the decision was not served.
2.The delegate who purpoted to make the decision did not have jurisdiction to give the decision. The Minister does not have the power to make the decision into effect. s66(1) and s66(2) of the Migration Act 1958 was not observed.
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 purpoted to be made.
4.The application is late. However the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural and Indigenous Affairs, Plaintiff S157 of 2002 v Commonwealth (2003) FCA 1292 and (2003) 195 ALR 24.
5.This application is not vexation nor the abuse of process. A delegate decision can be reviewed by the Court under certain circumstance. The Court previously reviewed decision of the delegate in mater of:
SZCTH v Minister for Immigration (No. 1) [2004] FMCA 211
NAMG v Minister for Immigration (No. 1) [2003] FMCA 541
Alam v Minister for Immigration [2005] FCAFC 132.”
[Errors in original]
The application for a protection visa is reproduced at Tab 2 of OOM-1 pages 1 to 24, including a statement by the applicant dated 30 April 2003 at pages 25 to 26. The letter dated 19 June 2003 notifying the applicant of the decision to refuse the protection visa is at pages 37 to 38, and encloses the delegate’s decision record which is reproduced at pages 39 to 43. This material reveals that the applicant, who is a national of India, sought protection in Australia for reasons deriving from his being a Muslim in Tamil Nadu. He claimed that as a Muslim he had problems with the local opposition parties (BJP, RSS and AAADMK).
At the hearing before me the applicant was unrepresented and was assisted by an interpreter in the Tamil language. Ms. Brauer appeared for the respondent Minister. At the commencement of the hearing the applicant advised that he did not seek to rely on his affidavit filed in this Court on 7 December 2005. He stated that what he really wanted was permission to stay in Australia for another year. He explained that he had only recently retired, and that he would go back to India if he was able to stay here for this period.
I explained to the applicant, who was clearly without legal representation before the Court, that the Court has no power to grant him a visa to enable him to stay in Australia. The power of the Court in relation to those who had sought refugee protection in Australia, and who were seeking to pursue complaints about administrative decisions relating to any such applications, enables it to provide relief to applicants where those decisions are infected with legal error.
I explained to the applicant that he had made an application to this Court which complained, on its face, of a number of purported legal errors in the delegate’s decision in circumstances where he had already sought merits review of this decision and then pursued judicial review of this decision. I reminded him that the purpose of the hearing before the Court now was to examine his latest complaint in this context, not to decide on whether he should stay in Australia for another year. In this regard the applicant had nothing to say in relation to his application.Keeping in mind that the applicant appeared unrepresented before the Court, I assisted him further by explaining that on its face what he had put to the Court (although not put in any evidentiary context), namely that he was merely seeking the opportunity to extend his stay in Australia, could go to the issue of supporting the Minister’s claim that the application was an abuse of the process of the Court.
The applicant explained that he expected that this Court would dismiss his application, and that he came to this view after reading the Minister’s submissions. I indicated to the applicant that I accepted his explanation and thanked him for his honesty. The applicant then, in seeming contradiction to what he had just said, asked the Court as to whether he needed “leave to appeal to the High Court”. I am mindful that such statements from the Bar table, from an unrepresented applicant, from a non-English speaking background, need to be treated with great caution and with sensitivity.
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.
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 the 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 a failure in notification did not of itself affect the validity of the decision. The applicant's 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 applicant 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. But even if the applicant (by way of his application) is 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 has been put before me by the applicant to support this claim. Nor is anything of this nature evident on the material before me. On what is before me the delegate’s decision record (Tab 2 pages 39 to 43) shows that the delegate addressed the applicant’s claims as put by the applicant in the statement of claims attached to his protection visa application (Tab 2 pages 25 to 26), and made clear findings. Nothing to the contrary has been put as evidence before the Court.
The application also contends that the delegate’s decision can be reviewed by the Court under certain circumstances, and puts forward that the Courts have previously reviewed decisions by a delegate in a number of cases. In this regard there is reference to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 (“Chan Ta Srey”). In that case, the issue concerning notification of the delegate’s decision came before the Federal Court in a matter concerning a complaint that the applicant's detention by the Minister for Immigration was not sanctioned by the Migration Act, and was therefore unlawful. The issue about notification in that case clearly arose independently from the issue that is raised before me, that is, the validity of the delegate’s decision, and can be distinguished on that basis.
In looking at the material before me I cannot see that there is any other complaint by the applicant relating to any other decision, or administrative action, by the Minister, or her delegate. Simply, the applicant has put forward his complaint about the notification of the delegate’s decision as a means of complaint about that decision itself, and not any other decision or action taken by the Minister. In Chan Ta Srey notification of the delegate’s decision (and in that case the complaint concerned s.66(2)(d)(2) of the Act) had “crucial” consequence in that if the applicant was not properly notified then a Bridging Visa, which the applicant had been granted earlier, would not be said to expire, and would therefore continue to entitle him to be treated as a lawful non-citizen. This went directly to the issue of the validity, or otherwise, of his (Immigration) detention. The applicant has put nothing of that nature now, nor is anything of that nature apparent, in the material before me. The applicant (through the application) may indeed be correct in stating that a delegate’s decision can be reviewed by the Court under certain circumstances, but those certain circumstances, in the sense as they existed in Chan Ta Srey, do not exist in the case before me. Simply, the applicant is seeking to utilise an alleged failure in notification to attack the delegate’s decision.
The applicant also refers to SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No. 1) [2005] FMCA 211 (“SZCTH”) and NAMG vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 8541 (“NAMG”). Both cases however dealt with a situation different, in a relevant particular, to the situation before me. In both those matters before Driver FM, his Honour found that an attack on the decision of the delegate when considered during the course of an application for summary dismissal was not doomed to fail and was not obviously an abuse of process in circumstances where the delegate’s decision had not been reviewed on its merits. In NAMG no review application was filed, and in SZCTH an application for review filed with the Tribunal was filed out of time, and the Tribunal found it had no jurisdiction to consider it. It was clear that in both cases there had been no merits review by the Tribunal, and that the applicants did not appear to have had any real opportunity to challenge the delegate’s decision. This is clearly not the situation in the case before me. The applicant here has had ample opportunity to have tested the delegate’s decision before the Tribunal, an opportunity which he utilised. Further, as I have already said, he then had that Tribunal decision (which it must be emphasised was “de novo”) put before this and the Federal Court. I cannot see that the “certain circumstances” referred to, and as it appears is said to have existed in SZCTH and NAMG, in any way exist before me.
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 can also be distinguished from the case before me. In that case the Court, while there was some focus on the process used by the first respondent’s employees in searching for and apprehending the applicant, ultimately looked at the Tribunal’s decision. In this regard the error that it found involved its interpretation and application of a particular condition that attached to the applicant’s visa in that case. That is not the case here.
Clearly, given what I have set out above, any failure to give notification would not affect the validity of the decision. I should just note that while the application makes reference to ss.66(1) and 66(2) and claims that they were not observed, the applicant has put absolutely nothing before me to show how these sub-sections were not observed.
In relation to s.66(1) it is not exactly clear what the applicant’s complaint really seeks to address. The delegate’s decision was made on 19 June 2003 (Tab 2 page 43) and notified to the applicant by letter dated 19 June 2003 (Tab 2 pages 37 to 38), sent by registered post to the applicant at his mailing address. The address corresponds with that provided by the applicant in his application for a protection visa (Tab 2 page 12). I note that the applicant asserts in his application for review of the delegate’s decision to the Tribunal (Tab 2 pages 45 to 48 and in particular at page 47) that he was advised of the delegate’s decision by letter dated 19 June 2003 and did indeed make his application for review of that decision, and lodged that application, on 4 July 2003.
In relation to s.66(2) of the Act and the notification of the delegate’s decision, clearly:
Re: Section 66(2)(a)
Specifies the criterion which the applicant did not satisfy and in relation to which the grant of the visa was refused.
Re: Section 66(2)(b)
This did not apply to the circumstances of the applicant's case.
Re: Section 66(2)(c)
The delegate did give written reasons as to why the criterion was not satisfied and these were attached to the letter of notification.
Re: Section 66(2)(d)
The applicant did have the right to have the decision reviewed pursuant to Part 7 the Act in that it was a protection visa decision. The letter to the applicant clearly stated that the decision could be reviewed, and gave a time in which the application for review may be made (the issue which was of concern in Chan Ta Srey). The letter also advised that the applicant had the right to apply for the review and provided information about applying for review. There is nothing therefore in the material before me to show that the complaint regarding s.66(2) could succeed.
Further, whatever the situation above, the delegate’s decision has been “cured” by the subsequent Tribunal’s review. I note Wilcox J., in Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at [19]:
“If a first decision is invalid because the decision maker failed to take into account a relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision ought initially to have been made and who has taken into account the relevant matter, the initial defect may reasonably be regarded as “cured”.”
In my view there is clear law that a Tribunal decision will “cure” a delegate’s decision. In Yilmaz v Minister for Immigration 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 note the subsequent relevant analysis at [93] to [96].
There is further clear authority that a Tribunal has 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.
The respondent has also referred me to the Judgement of Smith FM in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 (“SZGMZ”) and in particular at [23] and [24]. I have read that Judgement and with respect agree with what is set out at those paragraphs. I further note the similar factual circumstances before his Honour in that case, with the circumstances 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 the applicant has had the opportunity to seek a “de novo” merits review of the delegate’s decision. That opportunity was taken up. The decision on review was the subject of subsequent 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 not. It is clear therefore that the current application would fail on this ground and to allow the application to continue would constitute an abuse of process.
I note that the application in relation to that decision was dismissed by FM Scarlett on 26 September 2005 (Tab 4 of OOM-1). His Honour found that Tribunal’s decision to be a privative clause decision. An application for leave to appeal, filed in the Federal Court from FM Scarlett’s Judgement, was dismissed with costs by Wilcox J. on
23 November 2005 (Tab 6 of OOM-1). The applicant has had his refugee claims assessed by two decision makers. The second decision (the Tribunal’s decision) has been the subject of litigation.The application before me now is an abuse of process. The applicant applied for a protection visa and, when this was refused, he sought merits review by the Tribunal and then sought judicial review, both at first instance in this Court and then in the Federal Court of that Tribunal decision. It is clear on the relevant authorities that even if any defect was evident (which on what is before me it is not) in the delegate’s decision, it would have been “cured” by the decision of the Tribunal. Having fully pursued this course, the applicant now comes to this Court some 2 ½ years later to put before the Court an application complaining about the same delegate’s decision. Further, this is done in circumstances where, despite opportunity, the applicant has put nothing beyond mere assertions (i.e. any further evidence or material in support of his application) to the Court. I follow the approach I took in SZCWS, which is consistent, with respect, with the approach taken by Smith FM in SZGMZ, and further with the approach taken by Scarlett FM in SZDCR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1176, where His Honour found that an application in circumstances such as the one before me now, was an abuse of process because the decision of the delegate had already been reviewed by the Tribunal.
In all the circumstances, it is appropriate to dismiss the application now. Any further continuance would only serve to add to the abuse of process. It is also appropriate to make the orders sought by the respondent that the Court’s Registry not accept any further application from the applicant concerning the delegate’s decision or the Tribunal’s decision without leave of this Court.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 08 September 2006
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