SZDWX v Minister for Immigration

[2006] FMCA 1423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1423

MIGRATION – Review of decision by Refugee Review Tribunal – whether Delegate’s decision is cured by a decision of Refugee Review Tribunal – whether applicant was notified of Delegate’s decision.

Migration Act 1958 (Cth), ss.66; 66(4)
Federal Magistrates Court Rules2001, r.13.03A(c); sch. 1

Twist v Randwick Municipal Council (1976) 136 CLR 106
Wuv Minister for Immigration and Ethnic Affairs (1994) 28 FCR 294
SZGMZ v Minister for Immigration [2005] FMCA 1549

Applicant: SZDWX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3475 of 2005

Judgment of: Emmett FM

Hearing date: 13 September 2006

Date of last submission: 13 September 2006

Delivered at: Sydney

Delivered on: 13 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Mr Z. Chami, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3475 of 2005

SZDWX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.The applicant seeks judicial review of a decision of the delegate of the first respondent (“the Delegate”) dated 23 January 2004 by way of application filed in this Court on 28 November 2005.  The first respondent read the affidavit of Krishan Nathaniel Sinnadurai sworn on 12 December 2005, which annexed the litigation history of the applicant in respect of the refusal by the Delegate to grant him a protection visa.

2.On 13 February 2004, the applicant filed an application for review of the Delegate’s decision with the Refugee Review Tribunal (“the Tribunal”).  The applicant attended a hearing before the Tribunal at which he gave oral evidence and at which he acknowledged that he had the assistance of a migration agent in preparation of the hearing. 

3.The Tribunal decision recites in some detail the exchanges that it had with the applicant in respect of his claims and particularly noted the applicant’s responses.  Ultimately, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for Convention reasons and the Tribunal is therefore not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

4.I should say that the Tribunal also identified written claims made by the applicant in support of his application of protection visa and also sought further information from the applicant prior to the hearing. 

5.On 21 June 2004, the applicant filed an application in this Court seeking judicial review of that the decision of the Tribunal dated 30 April 2004. 

6.On 6 June 2005, the applicant appeared at a hearing before Lloyd-Jones FM with the assistance of an interpreter.  Lloyd-Jones FM, after comprehensive reasons, concluded that the applicant’s application before him did not raise any issue that indicated that the Tribunal’s decision was infected by jurisdictional error, and accordingly dismissed the applicant’s application. 

7.On 18 August 2005, the applicant lodged a notice of appeal with the Federal Court of Australia in respect of Lloyd-Jones FM’s decision.  The applicant appeared before Gyles J at a hearing on 10 November 2005, and the applicant’s appeal was dismissed. 

1.The first respondent submits that even if the decision of the Delegate was affected by jurisdictional error, any such error was cured by the decision of the Refugee Review Tribunal in circumstances where the Refugee Review Tribunal was empowered to make whatever decision ought initially to have been made and the Refugee Review Tribunal has taken into account the relevant matter.  I refer to Twist v Randwick Municipal Council (1976) 136 CLR 106 (“Twist”) per Mason J at 116 and Wuv Minister for Immigration and Ethnic Affairs (1994) 28 FCR 294 (“Wu”) per Wilcox J at 299.

1.The first respondent submits that authorities generally support the proposition that a Court should not give relief in respect of a delegate’s decision when a person affected by the decision has had the opportunity to seek a de novo merits review.  That opportunity was taken, and the decision on review was not flawed by error subject to correction judicial review proceedings. 

8.In this case, the Tribunal’s decision was the subject of judicial review by the Federal Magistrates Court, who found no error in the decision of the Tribunal, and an appeal to the Federal Court from that decision was dismissed. 

9.The applicant was unrepresented before me this morning, although had the assistance of a Tamil interpreter.  I explained the difficulty that the applicant faced in circumstances where there isof this procedural history.  I also had the applicant’s grounds, identified by him in his application, interpreted for him again and invited him to say anything he wished in support of his application. 

10.The applicant’s application is in the following terms:

“Application to review “the notification” of a decision and the decision of the Delegate of the Minister for Immigration and multicultural [sic] and Indigenous Affairs(the delegate) to refuse to grant the applicant a protection visa under Administrative Decision (Judicial review) act 1977 and Migration Act 1958.

The applicant was notified of the decision that is the subject of this application on 23 JANUARY 2004 File no CLF2004/1488.The applicant is aggrieved by the(decision or conduct or proposed conduct or failure) because:

1.   The decision was not made according to law

2.   The decision failed to observe the prescribed method of delivering and notifying a decision.

3.   The delegate did not have the power to give the decision to the applicant

4.   The decision was infected by jurisdictional error and breach of procedural fairness

5.   Extention [sic] of time to file

THE GROUNDS OF APPLICATION ARE: -

1. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore the procedures that were required by law to be observed in connection with the making of the decision was not observed.

2. The delegate who purported to make the decision did not have jurisdiction to give the decision. The minister does not have the power to take the decision in to effect. S66(1) and s66(2) of the Migration Act 1958 was not observed.

3. The decision was infected by error of law.The [sic] decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purpoted [sic] to be made.

4. The application is late. However the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs Plaintiff S157 Of 2002 v Commonwealth (2003) FCA 1292 and (2003) 195 ALR 24 [sic].

5. This application is not vexatious nor the abuse of process. A delegates [sic] decision can be reviewed by the court under certain circumstances.The court has previously reviewed decision be [sic] the delegate in the matters of:

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs(2002) FCA1292 [sic]

SZCTH V [sic] Minister for Immigration (no.1) [2004] FMCA 211

NAMG V Minister for Immigration(no.1)[2003] FMCA 541

ALAM V Minister for Immigration [2005] FCAFC 132

The applicant claims ---

1 An order and or declaration that the notification by the delegate of the Minister to refuse to grant a protection visa is invalied [sic] and has no effect.

2 An order and or declaration that the decision by the delegate of the Minister has no effect

3 An order to redirect this matter to DIMIA to notify the applicant according to law.

4 An order not to remove the applicant from Australia while a decision is pending

5 Cost and

6 Any further order that this Honourable court may deem appropriate.”

11.The grounds are unparticularised, and to the extent they appear to complain about a failure of proper notification of the Delegate’s decision.  However, I note that the applicant, in fact, lodged a review application with the Refugee Review Tribunal three weeks after the date of the Delegate’s decision, which leads to the overwhelming inference that, at least by that time, the applicant was aware of the outcome of the Delegate’s decision. In any event, s.66(4) of the Migration Act 1958 (Cth) (“the Act”) provides that failure to give notification of a decision does not affect the validity of the decision. In those circumstances, any ground of relief based on a failure to notify, in accordance with s.66 of the Act, cannot succeed. That ground appears to be at the heart of the applicant’s complaints, as far as I understand his application filed on 28 November 2005. 

12.I note that, on 22 December 2005, the applicant attended a directions hearing at which time he was directed to file an amended application giving complete particulars of each ground of review, and any evidence on which he relied.  I note that no document has been filed by, or on behalf of the applicant, or on his behalf, since the initiating application. 

13.The first respondent submits that, even if the decision of the Delegate was affected by jurisdictional error, any such error was cured by the decision of the Refugee Review Tribunal in circumstances where the Refugee Review Tribunal was empowered to make whatever decision ought initially to have been made and the Refugee Review Tribunal has taken into account the relevant matter.  I refer to Twist v Randwick Municipal Council (1976) 136 CLR 106 (“Twist”) per Mason J at 116 and Wuv Minister for Immigration and Ethnic Affairs (1994) 28 FCR 294 (“Wu”) per Wilcox J at 299.

14.Turning to the first respondent’s principal submissions that I have referred to above, tThe principles are considered by Federal Magistrate Smith in SZGMZ v Minister for Immigration [2005] FMCA 1549 at paragraphs 23 and 24:

“[23] Secondly, the application seeking relief directed at the delegate’s decision would be refused in a final hearing, because such relief would be futile and serve no legal purpose. In my opinion, the structure of decision-making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision-maker. There is clear authority that the migration tribunals have power to review and reconsider legally invalid decisions as well as valid decisions (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Ahmed v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 343). In this context, it should be inferred that the legislature did not intend the Minister to have power to re-open primary decision-making, even if the primary decision were legally invalid, once an application for review had been brought and determined under s.415 (c.f. Commissioner of Police v Gordon [1981] 1 NSWLR 675 at 689C, and Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at 299G, and c.f. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5-13] and [50-60]). Such a construction of the legislative scheme would accord with long-standing High Court authority which has been applied in relation to the Administrative Appeals Tribunal (see R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225, and the cases discussed in Re Jonsson and Marine Council (1990) 11 AAR 439). The conferral of a limited discretionary power on the Minister to re-open the matter once merits review has been concluded confirms this construction (see s.417). 

[24] I therefore consider that the structure of decision-making under the Migration Act indicates that there could be no duty on the Minister to further consider the applicant’s protection visa application once an application for merits review has been brought and lawfully determined, even if the applicant could establish that the primary decision was legally invalid. In this situation, the applicant’s present attempt to litigate the validity of the delegate’s decision would concern an issue of no legal significance. The Court would decline to give declaratory relief as to the validity of the delegate’s decision on the ground that this could not resolve any real controversy. The applicant would have no prospect of obtaining orders by way of mandamus or certiorari in the absence of a purpose in setting aside the delegate’s decision and of any duty to reconsider the matter. In my opinion, the futility of litigating whether the present delegate’s decision was made lawfully is sufficiently clear to allow me to predict with the requisite confidence that the present application would fail on this ground, and to characterise its continuance as an abuse of process.”

15.In accordance with the principles referred to in Wu in citing the passage at Twist, that;

“If a first decision is invalid because a decision maker failed to take into account a relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision ought initially to have been made and who has taken into account the relevant matter, the initial defect may reasonably be regarded as “cured”.”

1.In my view, there is no error disclosed in the applicant’s application capable of amounting to, or that discloses an error capable of amounting to jurisdictional error, and iIn those the circumstances, the Delegate is functus officio.  E’s function is exhausted, and even if that were incorrect and or there was an error in the Delegate’s decision capable of amounting to jurisdictional error, such error was cured by the decision of the Refugee Review Tribunal. 

16.In the circumstances, it would be entirely inappropriate to consider relief of the Delegate’s decision., however,In any event, as I have found, the decision, based on the ground identified by the applicant does not disclose any jurisdictional error by the Delegate. 

17.The application, for both reasons, should beis dismissed.

RECORDED  :  NOT TRANSCRIBED

1.In the circumstances I order the applicant to pay the first respondent’s costs in the amount of $3,600. I note that the sum sought is less than is provided for in sch.1 of the Federal Magistrates Court Rules 2001, and does not include an amount for the first respondent’s motion that was dismissed, although it probably does include an amount for evidence that was also tendered in that application. 

1. I certify that the preceding twenty eighteen (2018) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S. Tsang

   Date:  20 September 2006