SZDWE v Minister for Immigration

[2004] FMCA 651

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWE v MINISTER FOR IMMIGRATION [2004] FMCA 651

MIGRATION – Application for review of RRT’s decision – objection to competency – no grounds of jurisdictional error raised – application dismissed.

Applicant: SZDWE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1873 of 2004

Delivered on: 6 September 2004

Delivered at: Sydney

Hearing date: 6 September 2004

Judgment of: Baumann FM

REPRESENTATION

Applicant appearing in person

Counsel for the Respondent: Mr McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the objection to competency be upheld and the Application be dismissed.

2. That the Applicant pay the respondent’s costs fixed in the sum of four thousand dollars ($4,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1873 of 2004

SZDWE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Settled from the ex tempore reasons)

Background

1. The applicant in this matter arrived in this country on 18 April 2000 from the Peoples Republic of China.   She claims to be a doctor.  She has family who remain in China including a child.  In her application for a protection visa filed on 26 June 2001 the applicant claims to have had a well-founded fear of returning to her country of birth and sought protection under the appropriate treaties.

2. From that point in time it seems to me the application was processed effectively and efficiently.  On 25 September 2001 a delegate of the Minister refused to grant the protection visa.  The applicant within time applied to the Refugee Review Tribunal for review on the merits of the application.  It should, of course, be remembered that the process and statutory framework is for an independent tribunal to review the decisions of the delegate.

3. I am satisfied on 12 August 2002 the Tribunal wrote to the applicant at the last known address of the applicant and importantly also to the applicant's migration agent who assisted her in completing the application, and advised that the Tribunal was unable to make a favourable finding on the material alone and gave notice that the matter would be decided after a hearing before the Tribunal on 18 September 2002.  On that date the reasons of the member of the Tribunal shows that there was no appearance by the applicant or anyone on her behalf.

Grounds of appeal

1. The applicant today from the bar table, and seemingly for the first time, alleges she was unaware of the hearing.  Of course, by not appearing at the hearing she did not take advantage of the opportunity to present evidence and facts to the Tribunal to enable them to consider her application on the merits.  I am satisfied, however, that she had the opportunity to do so.  On 15 October 2002 the member handed down her decision which affirmed the earlier decision not to grant a protection visa to the applicant.  There seems then to be an almost two year period where nothing much happened.  There is, for example, no evidence before me that the applicant made any attempt to find out what occurred at the RRT or to seek any re-hearing at that level. 

2. The next step in the litigation appears to be an application filed in this court on 18 June 2004.  The application shows that by this stage the applicant was in detention at Villawood.  The application is of a general nature in which the claimant says:

   “The decision by the Tribunal involves jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the cases was found in the decision”

3. When the applicant was invited to set out the grounds of the application the particulars are themselves far from helpful alleging errors of fact and a failure to "consider the application properly".

4. In response to the application, the Respondent caused a notice of appearance to be filed and also objected to the competency of the application because they say the application was not filed within 28 days of the notification of the Tribunal decision pursuant to section 478A of the Migration Act.

5. The matter came before a Registrar of this court on 29 June.  It appears as if the applicant was in attendance or at least agreed with the directions made which required the applicant to file and serve an amended application (giving complete particulars of each ground of review being relied upon) and also requiring the applicant to file and serve any written legal submissions.

6. It is clear that the applicant failed to do so.  When the matter was called on for hearing before me today the applicant with the assistance of an interpreter sought to provide further evidence.  I indicated to the applicant that the jurisdiction of this court is not to conduct a merits review of the hearing in the RRT.  It is limited to identifying whether any jurisdictional error has occurred in the process.

7. Counsel for the respondent Mr McInerney did provide succinct submissions.  It is clear to me that the findings of fact made by the RRT were reasonably open to the member.  There has been nothing filed or said by the applicant which establishes in my view any jurisdictional error.  As a result, the decision is a privative clause decision. In circumstances where there is no power for the Court to extend time, the respondent’s objection to competency must, as a matter of law, succeed. I therefore will order that the application is incompetent.

8. The respondent has sought an order that the applicant pay the respondent's costs fixed in the sum of $4,000.  I make an order that the applicant pay the respondent's costs in the sum of $4,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate: 

Date: