SZEUB v Minister for Immigration
[2006] FMCA 1589
•18 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1589 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 Federal Magistrates Court Rules 2001 – whether this Court has jurisdiction to entertain applicant’s application for review of decision of a delegate of first respondent. |
| Migration Act 1958 (Cth), ss.476; 476(2)(a) Federal Magistrates Court Rules 2001, rr.44.11; 44.12 |
| Applicant: | SZEUB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3620 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 October 2006 |
| Date of last submission: | 18 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms K. Crawley, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3620 of 2005
| SZEUB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the first respondent that the applicant's application filed in this Court on 9 December 2005 be dismissed by reason of the fact that pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), this Court has no jurisdiction to entertain the applicant's application. Power for the Court to make such an order is contained in rr.44.12 and 44.11 of the Federal Magistrates Court Rules 2001.
At the heart of the first respondent's contention is a submission that the applicant's application makes it clear that the applicant is seeking relief in respect of the decision of the delegate of the first respondent (“the Delegate”) dated 11 November 2003.
RECORDED : NOT TRANSCRIBED
In those circumstances, s.476 of the Act states that the Federal Magistrates Court has no jurisdiction in relation to, relevantly, a primary decision. A primary decision is defined as including a decision that is reviewable under Part 5 or Part 7, or would have been so reviewable if an application for such review had been made within a specified period. Plainly the decision of the Delegate in the case before this Court is a primary decision.
I now turn to consider the issue of whether the applicant’s application sought judicial review of only the Delegate’s decision.
The applicant's application seeks the following relief:
“Orders sought by Applicant
1. An order and or declaration that the notification by the delegate of the minister (emphasis added) to refuse to grant to (sic) protection visa invalid and has no effects, pursuant to section 44 of the Judiciary Act 1903 (Cth).
2. An order to redirect this matter to DIMIA to notify the application according to law.
3. An order and declaration that the decision by the delegate of the minister (emphasis added) has no effect.
...
Application for interlocutory relief
1. An application may be heard on order (or declaration) to redirect the applicants (sic) claims to the DIMIA for further consideration of this matter and advice (sic) the Tribunal to make a further consideration of this matter.
2. An order that no action is taken to remove the applicant from Australia while the decision is pending.
3. An order for costs and any further orders that this honourable court may deem appropriate.”
The grounds in support of that application are as follows:
“1. A breach of rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore that (sic) 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 the jurisdiction to give the decision. The Minister does not have the power to take the decision into effect. S66(1) and s66(2) of the Migration Act 1958 was not observed.
3. The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
4. The application is late. However, the application (sic) refers to Chan Ta Srey v Minister for Immigration & Multicultural (sic), Plaintiff S157 of 2002 v Commonwealth (2003) FCR 1292 and (2003) 195 ALR 24.
3. (sic) The application is not vexatious nor the abuse of process. A Delegate’s decision can be reviewed by the Court under certain circumstances. The Court has previously reviewed decision of the Delegate in the matter of:
ALAM v Minister for Immigration [2005] FCAFC 132
NAMG v Minister for Immigration (No.1) [2003] FMCA 54
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211”
The application contains the initials “N/A” in respect of the statement, "If a Tribunal made the decision, name the Tribunal?" I understand “N/A” in its ordinary meaning to be "Not Applicable".
The date of the decision in respect of which the application is sought is the same date as the Delegate's decision. There is nothing in the application, other than joining the Refugee Review Tribunal as the second respondent, to suggest that review is sought in respect of any decision other than the Delegate’s decision, dated 11 November 2003. However, there is no relief sought in respect of the Refugee Review Tribunal and a fair reading of the grounds makes it clear that the application refers only to the Delegate’s decision. The Applicant clearly states that the decision of the Refugee Review Tribunal is not applicable. In those circumstances, it is clear that the relief sought and the grounds relied upon relate only to the Delegate’s decision.
As I have already found, the Delegate’s decision is a primary decision and, in accordance with s.476(2)(a) of the Act, this Court has no jurisdiction in relation to such a decision.
Accordingly, the proceeding before this Court is dismissed.
ORDERS DELIVERED
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 26 October 2006
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