SZFEP v Minister for Immigration
[2005] FMCA 1655
•11 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1655 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – no breach of s.424A where applicant failed to attend RRT hearing and RRT not satisfied on the basis of protection visa claims and the applicant so informed – application dismissed. PRACTICE AND PROCEDURE – Whether a decision on an objection to competency final or interlocutory after a final hearing considered. |
| Migration Act 1958 (Cth), s.424A |
| SAAP v Minister for Immigration (2005) 215 ALR 162 SZBCS v Minister for Immigration [2005] FCA 1457 |
| Applicant: | SZFEP |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1171 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 11 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr John Bird Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the application.
The Minister’s objection to competency is upheld.
The judicial review application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1171 of 2005
| SZFEP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 6 March 2002 and was handed down on 28 March 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of political persecution. I adopt by way of background paragraphs 1 through to 10 of the Minister's written submissions:
The applicant is a male citizen of Pakistan. He arrived in Australia on 26 June 1999 on a tourist visa that was valid for 1 month (court book, page 34).
On 26 July 1999 the applicant applied to the respondent's Department for a protection visa (court book, page 1). His (very brief) claims (court book, pages 19-22) were set out in his protection visa application. It appeared that he feared persecution from Pakistani authorities on the basis of his political opinion.
In the decision record dated 20 October 1999 refusing to grant the applicant a protection visa, the delegate records that the applicant failed to confirm his attendance at the interview (court book, page 42).
The applicant applied for a review of this decision to the RRT on 22 November 1999 (court book, page 44).
On 30 January 2002 the RRT advised the applicant that it was unable to make a favourable decision on the written information provided by the applicant, so it invited the applicant to a attend a hearing on 25 February 2002 (court book, page 50).
In the decision record dated 6 March 2002 the RRT notes that the applicant failed to appear at the hearing (court book, page 62). The RRT proceeded to affirm the delegate's decision to refuse to grant the applicant a protection visa (court book, pages 58-65).
The applicant filed an application for judicial review of this decision in the Federal Magistrates Court on 3 December 2004 (SYG 3576/2004). No particulars were included in the application. At a directions hearing on 20 December 2004, the matter was set down for final hearing on 6 April 2005. The applicant elected to participate in the Court's free legal advice scheme.
The applicant was released from immigration detention on 24 January 2005 on a Bridging Visa E on the basis that he would be withdrawing his application for judicial review and was making arrangements to depart the country. On 4 February 2005 the applicant was granted a further Bridging Visa E until 7 March 2005 on the basis of medical advice that the applicant was unfit to travel pending an appointment with a specialist on 2 March 2005.
A notice of discontinuance prepared by the applicant was filed on 27 January 2005. On 13 April 2005 Federal Magistrate Barnes ordered the applicant to pay the respondent's costs fixed in the amount of $2000.
The applicant filed a further application for judicial review on 6 May 2005 in relation to the same RRT decision. No particulars are included in the application. The respondent sought to have the matter summarily dismissed on the basis that it was both an abuse of process and that no reasonable cause of action is disclosed in the proceedings. This application was heard on 1 August 2005 and was unsuccessful.
As is noted in those submissions, on 1 August 2005 I dismissed a motion by the Minister for the summary dismissal of the judicial review application. However, I struck out ground 1 of the judicial review application filed on 6 May 2005. I also required particulars of the remaining grounds by 1 September 2005. The applicant filed in my chambers on 31 August 2005 a document which he understood constituted compliance with the requirement for particulars. That document is not particularly helpful because it bears essentially on the first ground of review that I had struck out. That ground related only to the merits of the applicant's claim to be a refugee. The other grounds of review related to compliance with statutory obligations and bias.
I formed the view in the interlocutory hearing on 1 August 2005 that a legal issue requiring a final hearing in this matter was whether the RRT had complied with its obligations under the Migration Act1958 (Cth) (“the Migration Act”). Although the judicial review application asserts bias, there is no evidence or particulars in support of it and it has no substance.
The real issue is whether the RRT complied with its obligations under s.424A of the Migration Act. Mr Bird deals with this and the legal issues generally in paragraphs 12 to 15 of the Minister's written submissions. There is force in those submissions and I generally agree with them. To the extent that there was any doubt concerning the application of s.424A in the circumstances of this case, that doubt was removed by Bennett J in SZBCS v Minister for Immigration [2005] FCA 1457. That decision is binding upon me, being a decision on appeal from this Court. I see no basis to distinguish this case from SZBCS.
Having regard to the views expressed by her Honour in paragraphs 15 through to 24 of her judgment in SZBCS, I find that there was no breach of s.424A in this case. No other legal error by the RRT is apparent to me. The decision of the RRT is thus a privative clause decision because it is free from jurisdictional error.
The Minister presses a notice of objection to competency filed on 20 October 2005. The objection is supported by the affidavit of John Bird made on 19 October 2005. I accept his evidence. As a result of that and finding that the decision of the RRT is a privative clause decision, the notice of objection to competency must be upheld.
In my view, the decision of the Court is a final decision, notwithstanding the upholding of the objection to competency of the application, because the objection could only be upheld following the final hearing on the substantive issues in the case.
Finally, consistently with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, the RRT should be joined as the second respondent to the application. I order that the Refugee Review Tribunal is joined as the second respondent to the application.
I order that the Minister's objection to competency is upheld and the judicial review application is dismissed.
The judicial review application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000. I accept that that is an appropriate amount when assessed on a party and party basis. The applicant referred to his impecuniosity, but as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 November 2005
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