SZDMC v Minister for Immigration
[2006] FMCA 1013
•10 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDMC v MINISTER FOR IMMIGRATION | [2006] FMCA 1013 |
| MIGRATION – Application to review decision of delegate of respondent – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.411, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.11.01, 44.15 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 886 SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 763 SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA Trans 048 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZDMC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG724 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to include the Refugee Review Tribunal as a respondent is refused.
That the application of 8 March 2006 is dismissed as incompetent.
That the applicant pay the costs of the respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG724 of 2006
| SZDMC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter came before the court initially by way of an application filed on 8 March 2006 seeking review of a delegate of the respondent made on 31 October 2003 that the applicant was not entitled to a protection visa. The respondent filed a response on 22 March 2006 and an amended response on 26 May 2006. The matter is before the court today for the hearing of the respondent's application, on the basis set out in the amended response, for the court to dismiss the application as incompetent because it has no jurisdiction in relation to a primary decision under section 476(2) of the Migration Act 1958 (Cth).
The respondent filed written submissions in relation to the proceedings today. At a directions hearing on 13 April 2006 the applicant was ordered to file and serve written submissions in relation to these proceedings. No written submissions have been received by the court from the applicant. However, in the hearing today the applicant's cousin indicated that he wished to speak for the applicant. Leave was granted to him to do so. He initially sought orally, for the first time, to amend the application (which seeks review of the delegate's decision) to add the Refugee Review Tribunal as a second respondent. In effect he sought to amend the application to include an application to review the Tribunal decision as well as the delegate’s decision.
Under Rule 11.01 of the Federal Magistrates Court Rules 2001 the court may require a person to be included as a party. Subject to any order of the court a person whose participation is necessary for the court to completely and finally determine all matters in dispute in a proceeding must be included. The applicant has not named the Tribunal as a party in the application or served on the Tribunal a copy of the application consistent with the requirements of Rule 11.02. Nonetheless it is appropriate for me to address the application on the basis that the applicant seeks the leave of the court (see Rule 11.02(2)).
What the applicant seeks to do by this proposal is to re-agitate judicial review of the Tribunal decision in circumstances where that Tribunal decision has been the subject of prior decisions of this Court and of the Full Court of the Federal Court constituted by a single judge, Stone J and of an unsuccessful application for special leave to appeal to the High Court. (See SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 886, [2005] FCA 763 and [2006] HCA Trans 048).
This part of the application was put on the basis that the applicant's cousin had not been allowed to give evidence before the Tribunal. He took issue with the Tribunal's response in that respect, contending that a number of important High Court and other decisions had occurred since the proceedings in relation to review of a Tribunal decision. Reference was made in particular to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. It was suggested that there had been in some unidentified way a miscarriage of justice in the prior proceedings. Reference was made to the applicant having relied on representation by counsel and it was suggested that the applicant had a legitimate expectation that he could argue his case one more time.
This matter was raised in a somewhat novel way, as the normal procedure for an amendment of an application was not adopted by the applicant and in circumstances where, as I have indicated, there has been judicial review of the Tribunal decision. In the prior proceedings in this Court the applicant was self-represented. Federal Magistrate Lloyd-Jones considered in some detail the numerous grounds raised in the review application including, and I mention this because of the reference to SZEEU, a claim that there had been a breach of section 424A of the Migration Act 1958 (Cth). His Honour found no jurisdictional error.
On appeal Stone J also found no jurisdictional error, finding no breach of section 424 of the Act and also no failure to accord the applicant procedural fairness. In particular her Honour found that the Tribunal had addressed the matter that was raised before me about its failure to make arrangements to hear the applicant's witness. SAAP was decided by the High Court before the decision of Stone J and that case was also considered by her Honour. The applicant had the assistance of counsel in the proceedings before Stone J. The applicant then sought special leave to appeal to the High Court and had the assistance of counsel in connection with that application for special leave.
I also note that it is clear from the transcript of the application for special leave that the High Court was made aware of the applicant's claims in relation to the failure of the Tribunal to hear evidence from his witness. It found no error in the conclusions of Stone J in relation to that matter. The High Court was not convinced that a miscarriage of justice had occurred or that the outcome would be different in that court if special leave were granted.
It was foreshadowed by the solicitor for the respondent that if the amendment sought was allowed there would then be an application for summary dismissal of any application to review the decision of the Tribunal. In these circumstances, the context of the respondent’s application for dismissal of the application to review the decision of the delegate on the basis that the court has no jurisdiction, the circumstances are not such that I am persuaded that it is necessary to determine all matters in dispute or otherwise appropriate at this stage of the proceedings to add the Refugee Review Tribunal as a second respondent. In any event, such a step would be futile (see the time limits in section 477 of the Migration Act) and would be inappropriate in light of the prior judicial review proceedings in relation to the decision of the Tribunal.
In relation to the application for review of the delegate's decision, the issue before the Court is whether or not this Court has jurisdiction to review a primary decision in light of section 476 of the Migration Act 1958 (Cth) (the Act). That does not in any way turn on what occurred in the Tribunal. It is a discrete matter that I consider is best dealt with in the manner that it is now before the Court. The application for leave to include the Tribunal as a party is refused.
RECORDED : NOT TRANSCRIBED
In the application filed on 8 March 2006 the applicant sought review of the decision of the delegate of the respondent of 31 October 2003 refusing the grant of a protection visa. The respondent filed a response and then an amended response in which it was contended that the Court has no jurisdiction as the decision is a primary decision.
It is relevant to have regard to section 476 of the Migration Act as introduced on 1 December 2005. It is applicable as the application was filed on 8 March 2006. Relevantly section 476(2)(a) provides that the Federal Magistrates Court has no jurisdiction in relation to a primary decision. By subsection 476(4) a primary decision means a privative clause decision or purported privative clause decision that is reviewable under Part 5 or 7 or section 500, whether or not it has been reviewed, or that would have been so reviewable if an application for such review had been made within a specified period. Section 411 of the Act deals with decisions reviewable by the Refugee Review Tribunal (the Tribunal) and includes, by virtue of section 411(1)(c), a decision to refuse to grant a protection visa. The decision that was made by the delegate on 31 October 2003 was a decision to refuse to grant the applicant a protection visa. It was reviewable (and was in fact reviewed) by the Tribunal.
The applicant's cousin made a number of submissions which I have considered. Insofar as it was submitted that the Court would always have jurisdiction in relation to a privative clause decision (based on the decision of the High Court in Plaintiff S157) I note that that issue has been addressed in the drafting of the current form of section 476 which applies not only to a primary decision which is a privative clause decision but also to a primary decision which is a purported privative clause decision. Hence, contrary to the submissions made for the applicant, in this instance it cannot be said (in contrast to what was held in Plaintiff S157 in relation to a differently drafted provision of the Act) that the Court must have jurisdiction in order to consider whether or not the decision was infected by error. It is clear that since December 2005 this Court has no jurisdiction to review a primary decision such as the decision of the delegate in this instance.
The application must be dismissed as incompetent. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The application is to be dismissed as incompetent which means that the application of the applicant for review of the delegate's decision has been unsuccessful. The respondent seeks that the applicant meet the respondent's costs of these proceedings in the sum of $2,500. It was submitted for the applicant that the amount should be lower as these proceedings involved summary dismissal and not a final hearing. In response it was contended for the respondent that the amount of costs was fixed under Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001.
The relevant rule in relation to Part 2 of Schedule 1 is Rule 44.15 of the Federal Magistrates Court Rules. Rule 44.15(1) provides that:
The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1.
In other words it is not mandatory that the costs be that amount. Nonetheless Part 2 of Schedule 1 provides some guidance as to an appropriate level of costs in a particular kind of case and does indeed provide that the Court may, in circumstances where the proceeding is concluded at or before an interlocutory hearing (such as occurred today), order costs in the sum of $2,500.
I have had regard not only to the provisions of the Federal Magistrates Court Rules 2001 but also to the nature of this and other proceedings.
I consider that in all the circumstances the sum of $2,500 is appropriate.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 1 August 2006
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