SZEGE v Minister for Immigration
[2006] FMCA 946
•21 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 946 |
| MIGRATION – Visa – protection visa – application for review of delegate's decision – where delegate's decision previously reviewed by Refugee Review Tribunal – where applicant previously sought judicial review in the Federal Magistrates Court – where applicant previously appealed to Federal Court – res judicata – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 |
| Applicant S1141/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FCA 588 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 NAMG v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2003] FMCA 541 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Twist v Randwick Municipal Council (1976) 136 CLR 106 SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 553 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 562 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2004] FMCA 211 SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 350 SZDPO & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 566 SZEGE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 527 SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 224 Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 | ||
| Applicant: | SZEGE | |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3398 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 June 2006 |
| Date of Last Submission: | 21 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr McInerney |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3398 of 2005
| SZEGE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the delegate of the Minister that was made on 21st April 2004. The application was not filed at this Court until 22nd November 2005. The applicant has filed a set of written submissions on 8th February 2006. I have also read the first respondent's outline of submissions which were filed on
16th June 2006. The first respondent Minister submits that the Court should exercise its discretion to dismiss the application for two reasons. First, that the applicant's merits review of the decision has cured any alleged defect in the delegate's decision such that the relief sought lacks utility and should be refused in the exercise of the Court's discretion. Second, the first respondent submits that the Court should exercise its discretion to refuse the relief sought by the applicant for delay, waiver, inaction and acquiescence on the part of the applicant.
The history of this matter insofar as it is relevant is that the applicant arrived in Australia on 8th April 2004 and applied for a protection visa on 20th April. That application was refused by a delegate of the Minister the following day, 21st April. It is that decision of the delegate that is the subject or is the original subject of this application before the Court. When I say the original subject, it appears that the application has now changed so that the Court is being asked to review a decision made by the Refugee Review Tribunal as the submissions refer both to the decision of the Minister's delegate and also a decision by the Refugee Review Tribunal. Whilst the application does not make any mention of the fact that the decision has already been reviewed by the Refugee Review Tribunal, that in fact is the case. Indeed, not only has the decision been reviewed by the Refugee Review Tribunal, but the applicant has sought a review of this decision previously from the Federal Magistrates Court and has appealed against this decision to the Federal Court where Emmett J exercised the delegated jurisdiction of the Full Court of the Federal Court. Indeed, that is how the time between the handing down of the delegate's decision on 21st April 2004 and the filing of this application on 22nd November 2005 have been occupied.
It is clear from the reasons for decision of Mowbray FM in the earlier proceedings before this Court on 21st March 2005, SZEGE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 527 at [2], that the applicant lodged an application for review of this decision in the Refugee Review Tribunal on 10th May 2004.
The applicant attended a hearing of the Tribunal at which he gave oral evidence on 17th June 2004 and the Tribunal handed down its decision on 27th July 2004. That decision affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant then sought review of the Tribunal decision in this Court and, as I said, the application was heard by Mowbray FM on
21st March 2005. His Honour handed down a decision on that day dismissing the application with costs.
The applicant then appealed against the decision of the Federal Magistrates Court and that appeal was heard by Emmett J on
26th May 2005. His Honour dismissed the appeal and ordered that the appellant pay the respondent's costs of that appeal. Nothing then seems to have happened until 22nd November 2005 when the applicant then again brought proceedings in this Court seeking a review of the delegate's decision.
The application claims on the front page:
a)the decision was not made according to law;
b)the decision failed to observe the prescribed method of delivery in notifying a decision;
c)the delegate did not have the power to give that decision to the applicant;
d)the decision was affected by jurisdictional error and breach of procedural fairness.
The applicant was not able to explain to the Court why any of those things should be so, explaining that he had a solicitor at the time of the Refugee Review Tribunal hearing but was not legally represented now. The application sets out five grounds:
a)A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was notified to the applicant and therefore the procedures that were required by law to be observed in connection with the making of the decision were not observed.
b)The delegate who purported to make the decision did not have jurisdiction to give the decision. The Minister does not have a power to take this decision into effect. Sub-ss.66(1) and 66(2) of the Migration Act were not observed.
c)The decision was affected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which was purported to be made.
d)The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292, and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
e)
The application is not vexatious, nor an abuse of process.
A delegate's decision can be reviewed by the Court under certain circumstances. The Court has previously reviewed decisions by the delegate in the matters of Chan Ta Srey (supra) to which I have previously referred, SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No 1) [2004] FMCA 211, and NAMG v Minister for Immigration & Multicultural & Indigenous Affairs (No 1) [2003] FMCA 541, Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132.
The applicant has also, as I mentioned, filed written submissions in which he refers not only to the errors on the part of the delegate but also on the part of the Tribunal member. He alleges that the Department of Immigration & Multicultural Affairs and the Tribunal member did not follow the proper procedure as required by the Migration Act 1958. Again, there is a reference to s.66 of the Migration Act.
The second ground is the Tribunal decision was affected by an error of law and jurisdictional error.
Third:
The Department of Immigration & Multicultural Affairs and the Refugee Review Tribunal did not consider the application as a refugee despite not giving me fair chance to provide oral arguments with fear.
The procedure that was required to be observed under the Migration Act 1958 in connection with the making of the decision was not observed.
The delegate of the Minister ignoring relevant evidence and its finding in the face of contradicting independent evidence which indicate actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision-making power and attract s.39B of the Judiciary Act 1903.
The delegate of the Minister ignored the merits of the claims.
The applicant claims to be a genuine refugee under the United Nations Convention and subclass 866 of the Migration Act but the authority has not considered his claims.
The applicant believes there is a lack of procedural fairness in his case and refers to the decision of Craig v South Australia (1995) 184 CLR 163 at [197].
While deciding the protection visa application, the Department of Immigration & Multicultural Affairs went through a range of documents:
One of the documents listed in Part C relating to India to establish the applicant's claim as a refugee but it appeared that the Tribunal otherwise referred to these document's negative aspects not to grant me a protection visa.
The applicant believes that his application has not been taken into consideration properly and the decision made by the Department of Immigration & Multicultural Affairs and the Refugee Review Tribunal relied upon some general facts which thereby establishes a denial of procedural fairness.
The applicant claims to have been harassed by supporters of the Communist Party of India (Marxist) from time to time which nearly cost his life.
The applicant further states that the Tribunal failed to advise him what adverse information it relied upon to dismiss the application for refugee.
Despite having attended the hearing, before the Tribunal made up its mind to dismiss the application information was required to be sent to the applicant in writing to make his or her comments in compliance with s.424A as decided by the majority of Judges in the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 204.
The application is not vexatious or an abuse of law. A delegate's decision can be reviewed by the Court under certain circumstances. The Court has reviewed in the matter of SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No 1) [2004] FMCA 211.
The application is late. However, the application refers to Chan Ta Srey v Minister for Immigration (supra).
After considering all of my documents and proof of my claims, I would like to request the Honourable FM to make a favourable decision and the appeal be allowed and the matter redirected to the RRT for further consideration.
There is also annexed to that document to the submission two documents, one being an English translation of the other, addressed to the officer in charge of Ramnagar police station, dated on
14th December 2005.
Dealing with the claims in order, it is a misconception to consider that a Court on judicial review can consider both the delegate's decision and the Tribunal's simultaneously. The delegate's decision is a primary decision under s.476 of the Migration Act. The Court's position in the hierarchy is to conduct judicial review of decisions of the Refugee Review Tribunal or in appropriate cases the Migration Review Tribunal. There is no evidence of any breach of the rules of natural justice. There is no evidence of any breach of s.66 of the Migration Act.
There are a number of references to use by the delegate of country information. The Court has no power on a judicial review to consider factual matters which are the prerogative of the decision-maker.
There is a claim that the Tribunal was preoccupied and did not have a fresh look but there is no evidence in that, even if the Court had the jurisdiction to hear it. There is no evidence of an error of law or jurisdictional error.
The applicant's claim that neither the Department nor the Refugee Review Tribunal considered his application and did not give him a fair chance to provide oral arguments cannot be sustained. It is clear from the earlier decision of Federal Magistrates Court that the applicant attended the Refugee Review Tribunal and gave oral evidence.
The applicant attended the hearings both of the Federal Magistrates Court and of the Federal Court. There is no evidence of any breach of any procedure under the Migration Act.
The ground relating to the delegate of the Minister acting with actual bias had not been made out. Bias is a serious allegation because it implies actual personal fault on the part of the decision-maker.
There is no evidence of bias.
The claim that the delegate ignored the merits of the applicant's claims is of itself very much a claim going to the merits, and merits review is impermissible in this Court.
The applicant's claim to be a genuine refugee has already been considered in earlier Tribunals, including the hearing before Emmett J in the Federal Court.
There is no evidence of any lack of procedural fairness.
The claim about the Department going through the applicant's claims of documents is a claim for merits review which is impermissible.
Again, in paragraph 10 of the submissions, a claim that the applicant's application has not been taken into consideration properly does not of itself establish a denial of procedural fairness and in any event appears to me to be cavilling with the decision on the facts.
The next claim in paragraph 11 about having been harassed by supporters of the Communist Party of India (Marxist) is no more than an attempt at merits review.
In paragraphs 12 and 13 the applicant alleges a breach of s.424A of the Migration Act but does not make it clear as to what breach there is.
As to the reference in paragraph 14 that the application is not vexatious, I will have something to say about that a little later in the proceedings. It would appear to me that this application is an abuse of process. The claim also in paragraph 14 and in the application that a delegate's decision can be reviewed by the Court under certain circumstances relies on the decision of this Court in SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No 1) [2004] FMCA 211. There is an essential difference on the facts between this case and the decision in SZCTH (supra). Whilst I do not intend to express an opinion as to whether the decision in SZCTH is still good law, the difference is that in SZCTH the delegate's decision had not been the subject of any review as the Refugee Review Tribunal had no jurisdiction because the application made to the Tribunal was out of time. In this case it is quite clear that the delegate's decision was reviewed by the Refugee Review Tribunal and there has been judicial review of the Refugee Review Tribunal's decision. I distinguish SZCTH v Minister for Immigration.
The application is late. It most certainly is and even if I were satisfied that there were some ground for relief, I would on a discretionary basis decline to grant relief on the basis of the delay.
I note too that whilst in what is the second paragraph 14 of the submission, the applicant now seeks an order that the Court redirect the matter to the Refugee Review Tribunal notwithstanding the original application to review the delegate's decision, in my view the Court has no jurisdiction to do that.
The attachment of the document from India dated 14th December 2005 is irrelevant. This is not evidence that was presented to the delegate or to the Tribunal and indeed from its date, the document had not come into existence either at the time of the Tribunal hearing or the delegate's decision. In any event, the Court conducting judicial review does not take fresh evidence.
The application is misconceived and entirely without merit. There is an application to review a decision of the delegate. The fact is the delegate's decision has been reviewed. It was reviewed in a process of merits review by the Refugee Review Tribunal. In my view, there is then nothing to review. I refer to the decisions of Rares J in the Federal Court in SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 224 and also by his Honour in SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 350. In SZDCR his Honour said at 5:
The Full Court of this Court in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 at 352-354 [28]-[32] held that where there had been a merits review of the original decision-maker's decision the right of complaint concerning the procedures by which the original decision-maker's decision was obtained became subsumed in the merits review and that it was only errors in the reviewer's decision-making process that were amenable to judicial review on an application such as the present: see too Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.
I refer also to the decisions of his Honour in SZGGS at paragraphs 12 and 13. At 13 his Honour said:
In Zubair v Minister -
previously cited -
a Full Court of this Court held that any error affecting the decision of a delegate, including one which may go to jurisdiction, could not be relied on to challenge the subsequent decision on a merits review before the Tribunal. That is because the function of the Tribunal on review is to arrive at the correct and preferable decision: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18. Secondly, by electing to challenge the adverse decision by way of merits review an applicant invites the reviewer to apply to him or her a fair procedure in arriving at that correct and preferable decision. Therefore, one ignores the alleged errors attending the making of the original decision: see too: Twist v Randwick Municipal Council – previously cited
In my view, both of those decisions by his Honour, being decisions on appeal from this Court, are binding. I look too at the applicant's request in these proceedings to review the decision of the Refugee Review Tribunal. Before I do that, I will also in applications to review a delegate's decision refer to the decisions of Edmonds J in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 562 and the decision of Black CJ in SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 553.
In each case their Honours dismissed appeals against decisions of the Federal Magistrates Court, holding that in the circumstances an application for review of a delegate's decision was in fact an abuse of process.
Turning now to applications for further review of a decision of the Refugee Review Tribunal where the Federal Magistrates Court has already reviewed that decision and in fact the earlier decision has been unsuccessfully appealed, whether to the Full Court of the Federal Court or on occasions, but not in this case, on applications for special leave to the High Court. It has been held by Black CJ in SZDPO & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 566 where his Honour dismissed an appeal against a decision of the Federal Magistrates Court, holding at paragraph 4:
The Federal Magistrate had virtually no option but to dismiss the matter as an abuse of process of the Court. Nevertheless he looked into the matter with care before concluding that the application should be dismissed as an abuse of process.
At paragraph 5 his Honour went on to say:
The documents filed by the applicant in the present proceeding merely seek to re-agitate matters that were or might have been raised in the earlier proceedings.
In Applicant S1140/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 588 French J, on dismissing an appeal against the decision of the Federal Magistrates Court dismissing an application to re-litigate matters that had already been re-litigated in the Federal Court, found no merit in the appeal and found at paragraph 11 that the proceedings in that case were an abuse of process because they canvassed matters which clearly were or could have been raised before Matthews J in 1998. The fact is that where there has been a previous judicial review of the Tribunal decision, as there has in this case, and where there has been a previous appeal against the decision of the Federal Magistrates Court, there is no leeway left to an applicant to re‑litigate proceedings. In SZAPF v Minister, to which I have previously referred, at paragraph 4 Black J said:
Following the refusal of special leave to appeal in the High Court, the applicant has sought to, in effect, agitate the matter all over again by challenging the decision of the delegate. However, the applicant's submissions today were directed to the decision of the Tribunal, rather than to the decision of the delegate, even though the latter is the purported focus of the current proceeding.
The Court has no jurisdiction to hear an application for review of a delegate's decision that has already been reviewed by the Refugee Review Tribunal. The doctrine of res judicata applies in respect of the earlier proceedings for review of the Tribunal decision because the Tribunal decision has already been reviewed by the Federal Magistrates Court and an appeal against that decision has been dismissed. The fact is that there is nothing to review and, as I said, the application is entirely without merit. I am surprised that the first respondent did not seek on an earlier occasion to take interlocutory proceedings to dismiss this application as it was patently obvious on its face it had no merit whatsoever. That, however, is a matter for another day.
I note the matters raised by Mr McInerney of counsel and, with respect, I believe that he is correct. The fact is that any defect in the delegate's decision has been cured by the review conducted by the Refugee Review Tribunal. I propose to dismiss the application.
There is an application for costs. The applicant has been wholly unsuccessful and indeed I have found that the application was without merit. In my view, it is a matter for costs. The applicant says that he has no earnings and therefore is in no position to meet those costs. Whilst I accept that that may well be the case, in my view that is a reason that I should take into account in assessing not whether or not costs should be ordered but time to pay. The amount of $5,000.00 which is sought is inclusive of counsel's fees, as I understand it, and it is in my view an appropriate figure.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 June 2006
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