SZCTH v Minister for Immigration (No 1)

[2004] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCTH v MINISTER FOR IMMIGRATION (No.1) [2004] FMCA 211

MIGRATION – Application to review Refugee Review Tribunal decision and decision of the delegate – refusal of a protection visa – applicant claiming persecution in Bangladesh – motion for summary dismissal of the application as an abuse of process – RRT had no jurisdiction as the application to it was out of time – applicant abandoned earlier proceedings in the Federal Court and sought Ministerial intervention – applicant never having had a review of the delegate’s decision – the Court has jurisdiction to review a primary decision that is not a privative clause decision.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48, 48B, 417, 476

Fernando v Minister for Immigration [2000] FAC 324
Johnson v Gore Wood & Co [2002] 2 AC 1
Kosi v Minister for Immigration [2003] FMCA 340
NACG v Minister for Immigration [2002] FCAFC 173
NALE vMinister for Immigration [2003] FMCA 366
NAMG v Minister for Immigration (No 1) [2003] FMCA 541

NAYF vMinister for Immigration [2004] FCA 196
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
SZBIC v Minister for Immigration [2004] FCA 255
SZBJM v Minister for Immigration [2003] FMCA 599

Applicant: SZCTH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ428 of 2004

Delivered on: 5 April 2004

Delivered at: Sydney

Hearing date: 5 April 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms R Pepper

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Court directs that the application insofar as it is an application to review the decision of the delegate is to be listed for final hearing at 10.00am on 5 May 2004.

2. The motion be granted insofar as the application for judicial review seeks review of the decision of the Refugee Review Tribunal and that the motion be otherwise dismissed.

3. The applicant is to file and serve on the respondent any affidavit on which he wishes to rely in support of the application no later than 27 April 2004.

4. The applicant is to file and serve on the respondent written submissions in support of his application not less than five working days before the hearing date.

5. The respondent is to file and serve on the applicant any further written submissions not less than three working days before the hearing date.

6. Parties have liberty to apply for further orders or directions on three days notice.

7. Costs of today’s hearing be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ428 of 2004

SZCTH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me a motion, notice of which was given on 10 March 2004 by the respondent Minister. The motion seeks orders that an application for judicial review filed on 19 February 2004 be dismissed with costs pursuant to part 13, rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The motion seeks summary dismissal of the judicial review application as an abuse of process. The motion is supported by the affidavit of Jennifer Bautista and the exhibits to it filed on 17 March 2004.

   
   

   I received that affidavit and exhibits into evidence for the purposes of today's hearing.

2. Ms Pepper, for the Minister, also filed written submissions and a chronology.  These were filed in chambers on 29 March 2004.  The relevant background facts are usefully set out in paragraphs 1 through to 11 of Ms Pepper's written submissions and the attached chronology.  I adopt those paragraphs and the chronology for the purposes of this judgment:

   By notice of motion filed 15 March 2004 (“the motion”), the respondent (“the Minister”) seek an order dismissing the applicant’s application for judicial review filed 19 February 2003 (“the application”), seeking review of the decision of the Refugee Review Tribunal (“the RRT”) on 9 September 1997, refusing to review the decision of the delegate of the Minister not to grant a protection visa (“the visa”) because the RRT did not have jurisdiction to do so.

   In support of the application the Minister relies on the evidence deposed to in the affidavit of Ms Jennifer Bautista, sworn 17 March 2004 (“the Bautista affidavit”).

   Factual and Procedural Background

   The factual and procedural background to this notice of motion is set out in detail in the Bautista affidavit. A chronology is also appended to these submissions for the Court’s convenience.

   The application for a protection visa was refused on 13 May 1997 and the bridging visa ceased on 17 June 1997. The applicant lodged an application for review of the decision to refuse a protection visa with the RRT on 18 June 1997.

   Because the application for review with the RRT was lodged out of time, the RRT determined that it had no jurisdiction to entertain the application for review and it was dismissed on 9 September 1997 (Ex JUB1 p 47).

   Thereafter the applicant continued to remain in Australia unlawfully until he was granted a Bridging E visa  pursuant to participation in a representative action in the High Court of Australia. The applicant subsequently withdrew his participation in the High Court action and his bridging visa ceased on 17 April 2001.

   On 22 May 2001 the applicant lodged a second application for a protection visa. The same day the Department deemed the application invalid on the basis of s.48 of the Migration Act 1958 (Cth) (“the Migration Act”). Between 2001 and 2003 the applicant unsuccessfully sought several waivers of the s.48 bar from the Minister and/or Ministerial intervention pursuant to s.417 of the Act. All were refused.

   On 30 October 2003 the applicant was located working in a restaurant in Sydney and was subsequently detained and transferred to the Villawood Immigration Detention Centre.

   Whilst in Villawood, on 19 February 2004 the applicant lodged an application for judicial review in this Court to review the decision of the RRT made on 9 September 1997.  On 9 March 2004 the Minister filed a Notice of Objection to Competency in the Court.

   On 27 February 2004 the applicant also lodged an application for a Bridging E visa. On 2 March 2004 a delegate of the Minister refused to grant the visa.

   On 4 March 2004 the applicant lodged an application for review of the above decision with the Migration Review Tribunal (“the MRT”) and on 15 March 2004, the MRT affirmed the decision of the delegate to refuse the Bridging E visa.

DATE	EVENT	REF
01.05.70	Applicant born in Bangladesh.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 1 -23
15.04.97	The Applicant lodged application for a protection visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 1 -23
13.05.97	A Delegate of respondent refused the application for a protection visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 25 -33
18.06.97	The Applicant applied to RRT for review of delegate’s decision.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 34
09.09.97	The RRT made a decision that it had no jurisdiction as the application for review was lodged out of time.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 35 - 37
14.10.97	The Applicant lodged an application for judicial review in the Federal Court.  Federal Court proceedings No. NG848 of 1997.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 39 - 44
17.12.97	The Applicant wrote to the Federal Court withdrawing his application for judicial review.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 45
12.01.98	The Applicant wrote to the Respondent requesting that the Respondent exercise his public interest power under s.417 of the Migration Act 1958 (“the Act”).	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 46 - 48
03.03.98	Request that Minister exercise public interest power under s417 of the Migration Act refused	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 49
09.06.00	Applicant was a member of a class action in the matter of Ruhunuhewa.  Application in the class action of Ruhunuhewa lodged.  High Court proceedings no. S130 of 2000.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 50
20.03.01	Class action discontinued.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 51 -52
10.05.01	The Applicant’s representative wrote to the Respondent requesting the Respondent exercise his Ministerial discretion under s.48B of the Act .	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 53 -54
04.06.01	Request that Minister exercise Ministerial discretion under s48B of the Migration Act refused.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Pages 55 -56
01.03.03	The RRT file relating to the applicant’s application for review lodged on 18 June 1997 was destroyed under Australian Archives Records Disposal Authority 1267.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 57
01.08.03	The Applicant wrote to the Respondent requesting the Respondent to exercise his Ministerial discretion under s.48B of the Act and his public interest power under s.417 of the Act	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 58 - 165
18.09.03	The Respondent wrote to the applicant refusing to refer to the Applicant’s request for the Respondent Minister to exercise his Ministerial discretion under s.48B of the Act for the Respondent’s Minister for his consideration.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 166
20.10.03	The Respondent wrote to the applicant declining his request that the Respondent exercise his public interest power under s.417 of the Act.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 167
30.10.03	The Applicant was taken into detention and held at Villawood Immigration Detention Centre.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 168
19.02.04	Application for judicial review lodged in the Federal Magistrates Court. Federal Magistrates Court proceedings no SZ428 of 2004
27.02.04	The Applicant lodged an application for a Bridging E (Subclass 050) visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 169
02.03.04	The Respondent made a decision refusing to grant the Applicant a Bridging E (Subclass 050) visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB1 Page 170 - 174
04.03.04	The Applicant lodged an application for review with the MRT to review the decision of the Respondent to refuse his application for a bridging visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB 1 Page 175
15.03.04	The MRT made a decision affirming the decision of the Respondent to refuse the Applicant a bridging visa.	Affidavit of Jennifer Bautista sworn 17.03.04 Exhibit JUB 1 Page 176 - 186

1. The motion is opposed by the applicant.  In his oral submissions he told me that he was represented for the purposes of his protection visa application but was working in Griffith picking fruit at the time his visa application was considered by the delegate.  He told me that he was not advised promptly of the delegate's decision.  He was dissatisfied with that decision and gave instructions for a review application to be filed.  However, it was not filed in time.  It follows that the applicant does not dispute the facts dealt with in the decision of the RRT.

2. I am satisfied, based on the material before me, that the application for judicial review should be dismissed summarily insofar as it seeks judicial review of the decision of the RRT. There are several reasons for that conclusion. The first is that the applicant has made several attempts to deal with the decision of the RRT. The applicant had sought review in the Federal Court in proceedings NG848 of 1997; he abandoned those proceedings. Secondly, the applicant sought from the Minister relief under s.417 and s.48B of the Migration Act. As has been found by the Federal Court previously, requests for intervention under s.417 or s.48B may be a representation that no further judicial review proceedings will be instituted in respect of the relevant decision.

3. Thirdly, the relevant decision of the RRT was made in 1997.  The applicant has had ample opportunity to seek judicial review of that decision but abandoned his two attempts to obtain that review.  In the meantime, the file relating to the RRT proceeding has apparently been destroyed in accordance with the ordinary process of the destruction of records.

4. I agree with and adopt paragraph 15 of Ms Pepper's submissions insofar as the application is directed against the decision of the RRT:

   That the application for judicial review is a clear abuse of process is manifest from:

   a)the considerable delay in filing the application, particularly in the absence of any explanation for such delay[1];

   b)the multiple applications for review of the RRT decision[2];

   c)the lack of any particulars disclosing any substantial basis for the prosecution of the application;[3]

   d)the clear inference that can be drawn from the factual and procedural background to this case that this application has been brought for a collateral purpose, namely, to extend the applicant’s stay in Australia;[4]

   e)in the absence of any further particulars, explanation or evidence  provided by the applicant, the RRT’s decision that it had no jurisdiction to extend time and thus it lacked the jurisdiction to entertain the applicant’s application is overwhelmingly correct and no reviewable error is displayed.[5] This Court cannot review the merits of the applicant’s initial application to the RRT.

   [1] NAYF vMinister for Immigration [2004] FCA 196; Johnson v Gore Wood & Co [2002] 2 AC 1 at 22-34.

   [2] SZBJM v Minister for Immigration [2003] FMCA 599 at [4].

   [3] SZBIC v Minister for Immigration [2004] FCA 255 at [21].

   [4] NALE vMinister for Immigration [2003] FMCA 366; Kosi v Minister for Immigration [2003] FMCA 340. See also Ex JUB1 at p 171.8.

   [5] Fernando v Minister for Immigration [2000] FAC 324 at [52]; NACG v Minister for Immigration [2002] FCAFC 173 at [6]-[8].

5. If the request had been made by the Minister it would also have been open to me to summarily dismiss the application to review the decision of the RRT as disclosing no reasonable cause of action. The RRT plainly had no jurisdiction to review the decision of the delegate. The application to the RRT was not made within the 28 day time limit prescribed under s.412 of the Act as it applied at the time. There was nothing the RRT could do in those circumstances other than declare its lack of jurisdiction. The decision of the RRT was plainly correct and the judicial review application in this Court is doomed to fail insofar as it attacks that decision.

6. However, the application filed on 19 February 2004 is not simply an attack on the decision of the RRT.  It is also an attack on the decision of the delegate that preceded the decision of the RRT.  That decision of the delegate is set out in the court book from page 25 and was made on 13 May 1997.

7. While the departmental record appears not to be complete it appears that there are sufficient documents still in existence to permit a review of that decision to be conducted.  The application attacks the decision of the delegate on the basis of a lack of procedural fairness and also a failure to deal with an element of the applicant's claim.  In NAMG v Minister for Immigration(No 1) [2003] FMCA 541 I asserted the jurisdiction of the court to review a primary decision under the Migration Act in certain circumstances.

8. Under s.476(1) of the Migration Act the Court has no jurisdiction to review primary decisions. “Primary decision” is defined in s.476(6) to mean a privative clause decision that is reviewable or has been reviewed under part 5 or 7 or s.500 of the Act or a decision that would have been so reviewable if an application for such review had been made within a specified period. In NAMG I held that if a primary decision is not a privative clause decision the prohibition on judicial review in this Court does not apply.

9. In order to determine whether a decision is a privative clause decision the Court needs to consider whether the decision is infected by jurisdictional error.  That is an issue which the Minister might wish to re-argue in this case and a final hearing on the application to review the decision of the delegate would be an appropriate opportunity.  It does not appear that the applicant has attempted previously to seek judicial review of the decision of the delegate.  Prior to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 it does not appear to me that it would have been legally open to the applicant to do so.

10. The present application was filed approximately 12 months after that decision.  That delay, coupled with the delay of some seven years since the delegate’s decision was made might be a reason for the Court to decline to grant relief in the exercise of discretion even if jurisdictional error were found.  However, that is a matter more properly considered on a final hearing. 

11. The application insofar as it seeks review of the decision of the RRT is an abuse of process and is doomed to fail and should therefore be dismissed.  The application insofar as it is an attack on the decision of the delegate is not clearly doomed to fail.  Notwithstanding the very long delay since the decision was made it is also not obviously an abuse of process.  As was the case in NAMG, the delegate’s decision has not been reviewed on the merits.  In NAMG no review application was filed.  In this case the application was filed out of time and the RRT had no jurisdiction to consider it.  Not only has there been no merits review by the RRT but the RRT had no opportunity to consider any legal issues apart from jurisdiction.  Prior to this application, it does not appear that the applicant has had any real opportunity to challenge the validity of the delegate’s deicsion.

12. In my view, the applicant should be given the opportunity to argue his application at a final hearing insofar as it attacks the decision of the delegate.  I will, therefore, order that the motion be granted insofar as the application for judicial review seeks review of the decision of the RRT and that the motion be otherwise dismissed.  I will direct that the application insofar as it is an application to review the decision of the delegate be listed for hearing at 10 am on 5 May 2004.  I order that the applicant file and serve any affidavit on which he wishes to rely in support of the application no later than 27 April 2004.  I will further order that the applicant file and serve written submissions in support of his application not less than five working days before the hearing date and that the respondent file and serve written submissions not less than three working days before the hearing date.  I will order that the costs of today's hearing be reserved.  I will grant liberty to apply on three days notice.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 April 2004