SZEDF v Minister for Immigration

[2004] FMCA 497

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDF & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 497

MIGRATION – Where applicant seeking injunction preventing Minister from giving effect to delegate’s decision and releasing first applicant from detention – where applicant had previously held bridging visa A – where applicant argues that should the substantive application for review disclose jurisdictional error the bridging visa remains in existence and that the Court should exercise its discretion and reinstate the bridging visa A in the interim – whether the applicant should pay the respondent’s costs.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.5

PlaintiffS157/ 2002 v Commonwealth (2003) 195 ALR 24
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 2 ALD 1
MIMA v Bhardwaj (2002) 209 CLR 597
Jadwan Pty Limited v Secretary Department of Health and Aged Care [2003] FCAFC 288

Applicants: SZEDF & SZEDG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 2469 of 2004

Delivered on: 6 August 2004

Delivered at: Sydney

Hearing date: 6 August 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Interlocutory application dismissed.

2. The applicant pay the respondent's costs assessed in the sum of $500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. Matter to be referred to the Registrar for the allocation of a return date for directions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2469 of 2004

SZEDF & SZEDG

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There is brought before me today as a matter of urgency an application for interlocutory relief in respect of an application for review under s.39B of the Judiciary Act1903 of a decision of the Refugee Review Tribunal made on 17 March 1998.  The interlocutory relief requested by the applicant is for an injunction addressed to the Minister preventing her or her agents from continuing to or acting upon or giving effect to enforcing the delegate’s decision and an injunction addressed to the Minister directing her to make all such arrangements as are necessary to release the first applicant from immigration detention.

2. The brief facts of the matter are these.  The male applicant, who with his wife is a citizen of Indonesia, arrived in Australia on 22 April 1996.  His wife arrived on 1 September 1996 and they applied for protection visas.  On 4 June 1997 a delegate of the Minister refused to grant protection visas and on 24 June 1997 the applicants sought review of that decision.  The decision was, as I have said, determined on 17 March 1998. The Tribunal affirmed the decision not to grant protection visas.

3. Pursuant to s.5(9) of the Migration Act 1958 it is accepted by both parties that an application under the Act is finally determined by that decision on review by the Tribunal.  Thereafter the applicant applied for bridging visas, which he would appear to have obtained from the department, whilst he sought an order for review of the Tribunal's decision by joining the Muin and Lie class actions in the High Court.

4. On 20 February 2004 the successor action to the class action brought by the applicant was dismissed by Emmett J.  The dismissal did not prevent the possibility of a further application to the court being made on other grounds.  The applicant received a letter from his then solicitor informing him that he had to do something about his situation by 19 March 2004.  The letter from the firm of solicitors which is exhibited to an affidavit of Mr Dobbie indicated that that firm would not be prepared to act in such an application.

5. The applicant appears to have done very little following the receipt of that letter until earlier this week when he was placed into immigration detention.  Either he or persons on his behalf then contacted the firm for which Mr Dobbie works and as a result a fresh look was given to the decision of the Tribunal and the application to which I have previously referred was made.  This application indicates a number of areas in which it is alleged the Tribunal fell into jurisdictional error in the manner in which it came to its decision.  Before me today only one is really pressed although that does not mean that the others are abandoned.  The claim that is being pressed is that the Tribunal fell into error in the Craig or Yusef sense because it failed to ask itself a relevant question being whether or not the applicant might have a well founded fear of persecution should he return to Indonesia arising out of actions found to have been addressed to him which were deemed by the Tribunal not to constitute serious harm.  Another way of putting it would be an application of Htun type, namely that the Tribunal failed to complete the task with which it was impressed.

6. Mr Dobbie's argument is that the applicant had a bridging visa A, which allowed him to remain within the community, to work and to be the beneficiary of the Medicare scheme up until the time that the application was finally determined. If what was purported to be the determination of his claim was found to be susceptible to jurisdictional error then it constituted no determination at all and therefore the bridging visa A remained in existence because there had been no finalisation as required by section 5(9) of the Migration Act.

7. Mr Dobbie relied on the dicta of the High Court in PlaintiffS157/ 2002 v Commonwealth (2003) 195 ALR 24 to argue that a decision which was infected by jurisdictional error constituted no decision at all. He asked me then to exercise my discretion to grant the relief sought on an interlocutory basis which would put the applicant in the position he might be if Mr Dobbie's substantive argument is successful.

8. The Minister argues that I should not provide this applicant with any relief.  She says firstly that there is a clear line of authority commencing with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 2 ALD 1 that ineffective decisions failed completely. She argues that the case of the MIMA v Bhardwaj (2002) 209 CLR 597 is not authority for a universal proposition that jurisdictional error on the part of a decision maker will lead to the decision having no consequences whatsoever. See Jadwan Pty Limited v Secretary Department of Health and Aged Care [2003] FCAFC 288 at [42]. Perhaps one could put it another way. Perhaps one could argue that until such time as the decision is determined by a court to have been invalid then it must be considered to be valid and the consequences which follow from that decision must be put into effect.

9. The Minister also argues that I should not exercise any discretion that I may have in regard to the interlocutory relief because the applicant was a person who must have understood his obligations in relation to maintaining his visa status.  He had done that since 1998 and it was only in 2004 that he failed to provide himself with the type of bridging visa which he now claims he is entitled to.  There clearly was a delay between March 2004 and August 2004 when the applicant appears to have done nothing.

10. An additional point is that even at this late stage the applicant could have applied for another type of bridging visa, or even possibly a bridging visa which would have given him the rights which he now asks me to grant him, but appears to have failed to do so instead relying on the arguments raised so articulately by Mr Dobbie.  Mr Dobbie says that the applicant's fault in this regard should not be an integer of the grant of discretion. But I think, that when one comes to the court seeking an injunction which would almost have the effect of assuming that the case which is to be substantively argued must succeed, all matters should be taken into account.

11. Whilst I can see that there is some merit in the argument raised by Mr Dobbie in relation to his client's prospects of success, they are by no means assured.  Taking all matters into consideration, I would not be minded to exercise my discretion to make orders that would effectively reinstate the bridging visa A that the applicant lost in 1998 upon the publication of the Tribunal's decision.  I think that it behoved the applicant to have made some more effort to regularise his status after he received the letter from Adrian Joel and I think that in regard to his wish to be immediately returned to his family, a wish I understand and sympathise with, that would perhaps better have been effected by making, at least for the time being, an application for a bridging visa E which he may well have succeeded in obtaining.

12. In all the circumstances, I dismiss the interlocutory application made before me today. I order that the applicant pay the respondent's costs. In relation to costs I have heard Mr Dobbie. I am of the view that this application, whilst well argued, was one which did not really have substantial prospects of success and I think it is only fair that the applicant pay the respondent's costs. Both the applicant and the respondent have been required to attend here in the middle of the day on an urgent basis. Mr Marcus has suggested to me that I make an order in the sum of $500.00. I think this is a very reasonable concession to make and I order that the applicant pay the respondent's costs assessed in the sum of $500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  12 August 2004