SZCOZ v Minister for Immigration and Anor (No.2)
[2006] FMCA 1606
•20 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOZ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1606 |
| MIGRATION – Review of Tribunal decision − where application previously subject of judicial proceedings for review − where a second application made to the Tribunal − where secondly constituted Tribunal functus to hear the second application − where application assessed by this court in relation to the first decision of the Tribunal − where applicant alleged fault on the part of the migration agent − whether fault of migration agent constitutes a breach of procedural fairness amounting to jurisdictional error. |
| Migration Act 1958(Cth) Federal Magistrates Court Rules 2001 Part 13, Rule 13.03A(c) |
| SZCOZ v Minister for Immigration [2006] FMCA 1332 SZCOZ v Minister for Immigration [2005] FCA 175 Minister for Immigration v SZFDE [2006] FCAFC 142 SZFOG v Minister for Immigration [2006] FCA 1170 Minister for Immigration Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 |
| Applicant: | SZCOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2058 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 October 2006 |
| Date of Last Submission: | 20 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr J. Wright |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The applicant not be permitted to file any further application in this court seeking review of a decision of the Refugee Review Tribunal or of a delegate of the respondent without leave of this court.
The applicant to pay the respondent’s costs, in addition to the previous order for costs, assessed in the sum of $950.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2058 of 2006
| SZCOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 31 August 2006, I dismissed an application by this applicant for review of a decision of the Refugee Review Tribunal (the “Tribunal”) handed down on 31 May 2006. The matter had come before me by way of Notice of Motion from the respondent because, as I said in my judgment:
“The proceeding itself is one of a type that this court has begun to see more and more of, namely, applications by persons to the Refugee Review Tribunal to reconsider a decision of the delegate that the Tribunal has already considered and which has been the subject of judicial proceedings for review.” SZCOZ v Minister for Immigration [2006] FMCA 1332 at [2]
The applicant did not attend the hearing before me on 31 August and so I dismissed the substantive application pursuant to Part 13, Rule 13.03A(c) of the Federal Magistrates Rules 2001, with what I expressed as a further hope that
“The applicant will not make the expected application to set aside this order before he starts to appeal it.” [4]
That hope was not to be realised.
The applicant has filed, as he is entitled to, an application for me to set aside the orders made on 31 August 2006. He tells me today that he was ill on 31 August but he had insufficient funds to attend a doctor to obtain a medical report. There seemed to be little point in denying the applicant an opportunity to argue against the Minister’s Notice of Motion and so I allowed the application.
The background to the Notice of Motion is that on 23 July 2003 the applicant lodged an application for a protection visa. On 15 September 2003, a delegate of the Minister refused his application. On 2 October 2003, he applied for review of the decision by the Tribunal. On
17 December 2003, the Tribunal affirmed the delegate’s decision.
On 29 January 2004, the applicant made an application for judicial review. The application was amended on 9 July 2004 and on
6 September 2004 was dismissed for non-compliance for failure to comply with an order of the court and non-appearance. On 6 October 2004, there was an application to set aside those orders which was dismissed by Federal Magistrate Driver on 1 December 2004.
On 21 December 2004, the applicant sought leave to appeal which was dismissed by Moore J on 18 February 2005. On 8 March 2005, the applicant filed special leave to appeal to the High Court which was dismissed on 8 September 2005. On 26 September 2005, an application for judicial review was filed in this court. There was a directions hearing on 26 October 2005. On 5 December 2005, the application was dismissed with costs by Federal Magistrate Smith. On 30 March 2006, the applicant lodged with the Tribunal a second application for review. It was heard by the Tribunal on 31 May 2006. The Tribunal found that it had no jurisdiction to review the application, it being made out of time and in respect of a decision of the delegate that had already been the subject of review. On 26 July, an application for judicial review was filed in this court and on 31 August I dismissed the substantive application.
It will be clear from the reading of the various judgments that although the applicant never had a chance to put his application for judicial review in any great detail his claims concerning the alleged failings of the Tribunal were considered particularly in the detailed judgment of Federal Magistrate Smith where at [17] his Honour referred to the review of the matter by Moore J on 18 February 2005 SZCOZ v Minister for Immigration [2005] FCA 175 where his Honour said:
“[10] …I have read the reasons for judgment of the Federal Magistrate and, on their face, they appear to involve a regular exercise of the discretionary power.
[11] I have read the salient parts of the Tribunal's decision of 17 December 2003. That decision suggests that the Tribunal's consideration of the applicant's application for a protection visa was unexceptionable.”
Before me today I asked the applicant why he believed the Tribunal had made a jurisdictional error where the Tribunal had found that it was functus. I appreciate that this is a sophisticated legal question but the applicant did not address it. What he addressed was the failure of the first Tribunal to hear him because of what he described as the fault of his migration agent. From a perusal of all the judgments and the decision of the Tribunal itself it will be gathered that the applicant completed a form in respect of the hearing invitation in which he indicated that he did not wish to attend. The applicant now says that this was all the fault of his migration agent and that he didn’t understand what he was being asked to do, he just signed a form.
If this is true it reflects badly on the migration agent. But in Minister for Immigration v SZFDE [2006] FCAFC 142 a Full Bench of the Federal Court considered in some detail the possibility of the existence of procedural fairness where the facts made it clear that no blame lay with the Tribunal. At [101] the court said:
“What emerges from the authorities referred to above is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person’s exercise of the right to be heard before the decision is made, is compromised or lost through no fault of that person. That circumstance does not however establish a sufficient condition for a finding of procedural unfairness. Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost.”
By majority the Full Bench held that where an applicant was dissuaded by an agent’s fraud from attending a hearing there was no procedural unfairness amounting to jurisdictional error that made the application reviewable. I am bound by that decision. Accordingly the applicant’s ground for review of the first decision would not avail him.
I distinguish this decision from that in SZFOG v Minister for Immigration [2006] FCA 1170 where Cowdroy J, sitting on appeal, found that the fault of a migration agent could be taken into account in an application for dismissal on the grounds of abuse of process.
Although I have dealt with the situation regarding the first Tribunal decision the fact is that I am now faced with an application regarding a second Tribunal decision. As Mr Wright says in his helpful written submissions the Tribunal was functus: Minister for Immigration Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.
There is no jurisdictional error that I can find in the Tribunal’s conclusion that the application made to it the second time was made too late for it to consider the matter even if it had not already considered it once before. In all the circumstances I am satisfied that this application cannot proceed. It is doomed to failure and should be dismissed pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
I order that the substantive application be dismissed. I also order that the applicant not be permitted to file any further application in this court seeking review of a decision of the Refugee Review Tribunal or of a delegate of the respondent without leave of this court. I order that the applicant pay the respondent’s costs in addition to the previous order for costs and I assess those costs in the sum of $950.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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