SZEOC v Minister for Immigration - [2005] FMCA 1091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOC v MINISTER FOR IMMIGRATION

[2005] FMCA 1091

MIGRATION – RRT decision – child born during pendency of parents’ RRT appeal – new visa application by infant child – failure to appeal within time – whether Tribunal lacked jurisdiction.

Migration Act 1958 (Cth), ss.412, 414(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 129 FCR 222

Applicant:

SZEOC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3054 of 2004

Judgment of:

Smith FM

Hearing date:

21 July 2005

Delivered at:

Sydney

Delivered on:

21 July 2005

REPRESENTATION

Counsel for the Applicant:

Applicant’s litigation guardian in person.

Counsel for the Respondent:

Dr M Allars

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3054 of 2004

SZEOC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a jurisdictional decision made by the Refugee Review Tribunal on 13 September 2004. In that decision the Tribunal said that it did not have jurisdiction to review a decision identified in an application for review lodged with the Tribunal.
There is sworn evidence, which I accept, that the application was lodged on 22 June 2004. It identified as the decision for which review was sought, a decision dated 30 August 2002 with file reference CLF2002/21872. The decision so identified was a decision of a delegate of the Minister in which the delegate refused an application brought by an infant child for a protection visa.
The jurisdictional decision of the Tribunal applied the mandatory time limit in s.412 of the Migration Act and the relevant regulations to which the Tribunal refers, and held that there was no jurisdiction to review the decision due to the effluxion of time exceeding the 28 day time limit. Under those provisions, the time for bringing an appeal from the delegate's decision ran from the posting of notice of the decision to the applicant at her last known address provided to the Minister. I am satisfied on documentary evidence identified by affidavit that a letter satisfying the regulations was so despatched by registered post on 30 August 2002.
It is not necessary for me to repeat nor retrace the pathway which was followed by the Tribunal in relation to the notification of the decision and the effluxion of time. The applicant, through her father as litigation guardian, has not sought to challenge the factual basis of the decision nor its reasoning before me. I am satisfied that it was correct and was not vitiated by any error of fact or law. If the jurisdiction of the Tribunal is a matter for the Court to decide for itself, I am satisfied on the evidence before me that the Tribunal did not have jurisdiction to review the decision identified in the application for review. I adopt the reasoning of the Tribunal when reaching that conclusion.
The applicant currently finds herself in a situation which is difficult to understand, and I have sympathy for her. It seems that her mother and father came to Australia and made unsuccessful applications for protection visas. The delegate’s decisions were taken on appeal to the Refugee Appeal Tribunal prior to the applicant’s birth on 23 February 2002. Shortly after her birth, her parents sought to gain for their daughter the benefits of temporary bridging visas and the prospect of substantive visas, which they were pursuing at that time before the Tribunal. They still are pursuing these objectives, and I am told by the applicant's father that he is currently litigating the validity of an adverse Tribunal decision in the High Court of Australia, presumably by way of application for special leave. The course of litigation which has led him to that court is not explained in any evidence before me.
On 11 April 2002, the applicants’ parents sought to add her to their matter which was then before the Tribunal, by lodging with the Department forms of application for a protection visa carrying the notation: “add to parents' application” and the RRT file reference. It is unclear on whose advice they did this, but I note that at subsequent stages they have received advice from a migration agent, including at the time of lodging the out-of-time application to the Refugee Review Tribunal.
The Department's response to the applications filed on 11 April 2002 was indicated in a letter dated 27 May 2002, which informed the applicant and her parents that:
For legal reasons your application has not been added to your parents' RRT application, and so a separate application has been raised for you.
The letter requested that further visa application forms be lodged which indicated the substantive refugee claims made by the parents and that the applicant sought a visa secondary and upon acceptance of the parents' claims.
On 25 June 2002 under a letter signed by the applicant's mother, the forms were returned completed to the Department. They made reference to the substantive claims made by the parents, which were based on their position as members of an ethnic or social group, the Biharis, who were claimed to be persecuted in Bangladesh. A copy of the mother's statutory declaration in support was submitted with the application. It was that application which the delegate decided in the letter dated 30 August 2002, and which was sent and posted to the applicant on that date as I have indicated above. It is unnecessary for me to analyse the reasoning of the delegate when addressing the substantive claims of the applicant's parents and upon which her eligibility depended, since its validity is not matter which is raised by the present application.
There is nothing in the evidence before me to indicate whether at the time of the delegate's decision the Refugee Review Tribunal proceeding was still outstanding. If it was, which seems likely, the lodgement of an appeal by the child at that time within the 28 day period would have allowed the Tribunal to have joined the child to the proceedings currently in the Tribunal and to have decided her eligibility when deciding her parents’ eligibility.
The applicant, through her litigation guardian, has not explained why such an appeal was not brought at that time, notwithstanding that clear advice about her review rights was given in the letter of notification of decision.
The applicant's father, in the review application lodged by the applicant in this Court on 12 October 2004, has adopted a precedent having no relevance to the situation of the applicant, nor to the jurisdictional decision sought to be challenged. In my view it is not possible to construe this application, nor its amendment which occurred on 28 January 2005, as encompassing any other administrative decisions or actions other than the Tribunal's decision on jurisdiction.
Moreover, in the absence of evidence as to what other administrative actions have occurred, and of the possible grounds of challenge to them, there is no purpose for me to attempt to extend the ambit of the proceeding beyond a judicial review of the Tribunal's decision on jurisdiction. To do so in the present situation might indeed be detrimental to the applicant's legal rights. As I have indicated I can find no ground of judicial review available to the applicant to quash the Tribunal's decision on jurisdiction, nor to give other relief which would establish its jurisdiction to review the delegate's decision on the applicant’s visa protection application.
The amended application contains general allegations which have no reference to the reasoning of the Tribunal concerning jurisdiction, but indeed contain an admission that the application for review was out of time under the statutory time limit. It is unnecessary in my view for me to go through the allegations contained in that document. They are manifestly irrelevant.
Insofar as they complain that the Tribunal arrived at its decision on jurisdiction without affording a hearing, I do not consider that there is substance in that complaint. The Tribunal in my opinion at the time when it decided whether it had jurisdiction, had not embarked upon its review of the decision so as to give rise to application of the procedural provisions under Div 4 of Pt 7 of the Migration Act. This is made clear in s.414(1) which says that: “the Tribunal must review the decision” but that is only “if a valid application is made under s 412 for review of an RRT reviewable decision”. In the present case, the Tribunal decided that there was no valid application, so that he Tribunal was under no duty to review the decision. It was therefore not under a duty to embark upon the stages or procedures set out in Div 4, including the duty to invite an applicant to a hearing.
Assuming that the Tribunal was under some obligations of procedural fairness before making its decision on jurisdiction, in my view any such obligations were fully satisfied by the Tribunal raising, by way of letter dated 5 August 2004, the Tribunal's concern that the application had: “reached us too late”. The applicant responded to that invitation by way of letter dated 31 August.
Confining myself, as I think I must, to the validity of the Tribunal's decision and to the issue of its jurisdiction, I consider that the application must be dismissed.
The applicant's father today expressed his desire for his daughter to be “joined” to his matters. It is very difficult to give this request any legal meaning. If he means that he wishes his daughter to be joined as a party in the High Court proceeding, then an application for that purpose should be made to the High Court, not to this Court. If he intends a request for the applicant to be retrospectively made the subject of administrative decisions made and completed in the past, then this request has not been properly raised by the application and evidence in the present proceedings. Its focus is too uncertain to allow me to analyse and give it any substance.
Undoubtedly the situation of this little girl is of concern to her parents and should be of concern to those administering the immigration legislation. But I have no reason to believe that it will not be properly addressed by a relevant application made to the Department or Minister. The form of that application is not a matter that the Court can advise the applicant’s father about, and he must seek his own advice from professional advisors or voluntary helpers of people in relation to immigration matters.
The applicant’s father today also sought an adjournment of the present proceeding on an unclear belief that this would assist the applicant, and also on the basis that he wished to gain further legal advice. However I am unable to see any practical benefit flowing from an adjournment of the present proceedings, even if I was inclined to give the indulgence of such an adjournment. In face of the admissions that establish the correctness of the Tribunal's decision on jurisdiction, I can see no purpose in keeping the present proceeding alive in this Court. The applicant, through her litigation guardian, has had ample time to take legal advice from whatever sources are available, since the present hearing was set down in October last year. In all the circumstance I declined to adjourn the proceedings today.
I shall order that the application be dismissed.

[Recorded but not transcribed]

The Minister seeks costs against the applicant or her litigation guardian. In my view, it would not be appropriate to order costs against this child. Obviously, she was not at an age competent to make decisions about the proceedings, nor to be held responsible for their conduct. Her father was joined as litigation guardian on my instigation at the first Court case, due to concerns about the proper constitution of the proceedings. However, his joinder was not essential to their continuance (see SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 129 FCR 222). On the evidence before me, the proper constitution of the proceedings and their lack of merit has not been shown to have been clearly raised by the Minister with the litigation guardian, and I am not satisfied that he has been on proper notice that either he or his daughter were at risk of costs in the present case. In all the circumstances I decline to make a costs order against either of them. However, the applicant's father is now on notice that any further litigation in the matter may carry a costs penalty.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 3 August 2005