SZDCR v Minister for Immigration
[2005] FMCA 1766
•29 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1766 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicants are citizens of India – where Applicants did not attend RRT hearing. PRACTICE & PROCEDURE – Abuse of process – primary decision – where Applicants did not disclose that an application for review had been previously heard by the Refugee Review Tribunal – where Applicants did not disclose that proceedings for review of the primary decision had already been heard and decided in the Federal Magistrates Court – where appeal against Federal Magistrate’s decision already dismissed by Federal Court – where application for special leave dismissed by High Court of Australia – costs payable on indemnity basis. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.474, 476
Federal Magistrates Act 1999 (Cth) s.15
Federal Magistrates Court Rules 2001 Rule 13.10
SZDCR v Minister for Immigration [2004] FMCA 1094
SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 712
SZDCR & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 728
| First Applicant: | SZDCR |
| Second Applicant: | SZDCS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2763 of 2005 |
| Delivered on: | 29 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 29 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | First Applicant in person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed as an abuse of process of the court.
That no further application by the Applicants to review the decision of the delegate of the Respondent Minister dated 14th November 2003 or the decision of the Refugee Review Tribunal dated 5th February 2004 and handed down on 25th February 2004 may be accepted for filing without leave of the Court.
That the Applicants may not institute any proceeding to review the decision of the delegate of the Respondent Minister dated 14th November 2003 or the decision of the Refugee Review Tribunal made on 5th February 2004 and handed down on 25th February 2004 without leave of the Court.
That the Applicants are to pay the Respondent Minister’s costs of these proceedings on an indemnity basis in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2763 of 2005
| SZDCR |
First Applicant
And
| SZDCS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 14th November 2003.
It is an abuse of the process of the Court. It is an abuse because the decision of the delegate has already been reviewed by the Refugee Review Tribunal. The Applicants applied to the Tribunal for review of that decision on 24th November 2003. The decision of the Tribunal was made on 5th February 2004 and handed down on 25th February 2004.
The Applicants do not mention in their application filed on 28th September 2005 that the delegate’s decision had already been reviewed by the Tribunal. They claim in their application to have been notified of the delegate’s decision on 25th February 2004, but that date is the date the Refugee Review Tribunal handed down its decision. The delegate’s decision was made on 14th November 2003, according to the decision of the Refugee Review Tribunal.
The Applicants also do not mention in their application that they have already taken proceedings in the Federal Magistrates Court seeking a review of the Tribunal’s decision. The application was filed on 24th March 2004 and was summarily dismissed for non-compliance with the Court’s orders on 5th November 2004. The Court’s citation for this decision is SZDCR v Minister for Immigration [2004] FMCA 1094.
Similarly, the Applicants do not mention in their application that they applied to the Federal Court for leave to appeal against that decision on 8th November 2004. On 13th May 2005 Conti J dismissed the application for leave to appeal with costs (See SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 712).
The Applicants then sought special leave to appeal to the High Court of Australia. On 8th September 2005 Hayne and Callinan JJ dismissed this application (See SZDCR & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 728).
The Applicants do not refer to these proceedings in the application they filed in this Court on 28th September 2005.
The Applicants have completed a form to indicate that they wish to take part in the scheme operated by this Court and the Federal Court for the provision of independent legal advice, free of charge, to unrepresented applicants in review of Refugee Review Tribunal decisions. As these Applicants, according to their application, are not seeking review of a decision of the Refugee Review Tribunal, they would not appear to be eligible.
The Applicants’ Application
The Applicants set out the following grounds in their application:
a)A breach of the rules of natural justice occurred. The decision was not notified to the Applicant.
b)The delegate who purported to make the decision did not have jurisdiction to give the decision.
c)The decision was infected by error of law.
d)The application is late, but the Applicant refers to Chan Ta Srey v MIMIA [2003] FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.
e)The Applicants claim a delegate’s decision can be reviewed by the Court under certain circumstances.
The Respondent’s submissions
Counsel for the Respondent Minister, Mr Reilly, has filed written submissions. He makes the following submissions:
a)As the delegate’s decision has been replaced by the decision of the Refugee Review Tribunal of 5th February 2004, see s.415 of the Migration Act 1958, the application purports to challenge a legally non-existent decision. The cases relied upon by the Applicants in support of their claim that a delegate’s decision can be reviewed by a court under certain circumstances are all cases where no right of merits review was available because no application for review had been made in time. He submits that none of those cases are relevant to the fact situation in this case, where the Tribunal had exercised jurisdiction and the effect of its decision was to replace that of the delegate.
b)The grounds of the application only concern notification of the delegate’s decision, but do not indicate how s.66 of the Act was not complied with by the delegate. In any case, given the effect of subsection 66(4) of the Act and the comments in Re MIMIA; Ex parte Palme (2003) 216 CLR 212 at [41-46], there could not be any argument that valid notification was a statutory precondition to the validity of the delegate’s decision.
c)The application must fail, as held of a similar application in SZGKR & Anor v Minister for Immigration [2005] FMCA 1316, a decision of Smith FM made on 25th August 2005.
d)Even if the Tribunal’s decision had been said to be affected by an error in the delegate’s decision or the procedures followed to delegate, such an argument would have failed. (See Zubair v MIMIA (2004) 211 ALR 261 at [28-32]; MIMIA v Ahmed [2005] FCAFC 58; Uddin v MIMIA [2005] FCAFC 218).
e)The application should be dismissed with costs on an indemnity basis and orders made that further applications seeking to challenge the decisions of the delegate, the Tribunal or the notification of such decisions not be accepted for filing without leave of the Court.
The Applicants’ submissions
The Applicants did not file any written submissions, despite a direction made on 31st October 2005 that they should do so fourteen days before the hearing. The First Applicant attended court and told the court that the application had been brought in Sydney rather than Melbourne because, even though they live in Victoria, he knows Sydney better than he knows Melbourne.
Conclusions
I am doubtful about the submission that under s.415 of the Migration Act the decision of the Refugee Review Tribunal replaced that of the delegate. The decision of the Tribunal was to affirm the delegate’s decision. Subsection 415(3) provides:
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
It appears to me that where the Tribunal affirms the decision under s.415(2) the decision does not become legally non-existent. It remains in force, having been reviewed and affirmed. I agree with the view of Smith FM in SZGKR (supra at [25]) that the decision would become legally irrelevant.
It is not a decision that can be reviewed by a Court. It would be a primary decision under s.476(6) if it were a privative clause decision that is reviewable, or has been reviewed, under Part 5 or 7 or section 500 of the Act, or it would have been so reviewable if an application for such review had been made within a specified period.
Clearly, this decision has been reviewed under Part 7 of the Act, as it has been reviewed by the Refugee Review Tribunal. In the particular circumstances of this case, although there have been prior proceedings in the Federal Magistrates Court, the decision was not held to be a privative clause decision as the earlier application was summarily dismissed on 5th November 2004 for non-compliance.
Nevertheless, the Applicants’ application for leave to appeal was dismissed by Conti J on 13th May 2005 and their application for special leave to appeal was dismissed by the High Court on 8th September 2005.
The grounds given by the applicants appear to me to be unmeritorious.
There is no evidence of any breach of the rules of natural justice. The claim that the decision was not notified to the Applicant(s) can hardly stand when it is clear that they were able to apply to the Refugee Review Tribunal for review of that decision within time.
There is no evidence that the delegate who made the decision did not have jurisdiction to do so. The claim that subsections 66(1) and 66(2) were not complied with does not affect the validity of the decision, as subsection 66(4) provides that failure to give notification of a decision does not affect the validity of the decision.
There is no evidence of any error of law on the part of the delegate. There is nothing to suggest that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was made.
A delegate’s decision may not be reviewed by a court when it has already been reviewed by the Refugee Review Tribunal under Part 7 of the Migration Act.
I am satisfied that the sole purpose of bringing this application is to secure the extension of the Applicants’ bridging visas, as I note that all of these proceedings have been instituted within 28 days of the last decision having been made, with the exception of the application for special leave to appeal to the High Court. There is no evidence before me as to when that application was filed, and I note that Hayne and Callinan JJ in their joint judgment on 8th September dismissing the applicants’ application and 28 other applications of a similar nature, said:
Some of the applications are made out of time.
Nevertheless, the Applicants managed to file their application to this court on 28th September 2005, 20 days after the High Court dismissed their application for special leave. I note that their Honours, in dismissing the 29 applications for special leave to appeal, said:
None of these applications would enjoy any prospect of success.
I am satisfied that the application before me was brought for an ulterior purpose, namely obtaining an extension of the Applicants’ bridging visas, in order to prolong the Applicants’ stay in Australia. The application is an abuse of the process of the court. I intend to dismiss the application. I also propose to order that the Applicants should not be permitted to file any further proceedings seeking review either of the delegate’s decision or of the decision of the Refugee Review Tribunal without leave of the court. Similarly, I intend to order that the Registry may not accept any such applications for filing without leave of the court. In my view, s.15 of the Federal Magistrates Act 1999 gives the court the power to make orders to prevent misuse of its procedure. Spurious applications to re-litigate the same issues over and over are a clear example of misuse of the procedure of the court or, in other words, abuse of the process of the court.
The Applicants are warned that any further attempts of this nature may lead to their being declared vexatious litigants.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 30 November 2005
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