SZFUZ v Minister for Immigration
[2005] FMCA 694
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFUZ v MINISTER FOR IMMIGRATION | [2005] FMCA 694 |
| MIGRATION – Notice of motion to dismiss application for judicial review – whether the application discloses a reasonable cause of action – where the applicant withdrew an application for a protection visa – whether the Tribunal committed jurisdictional error in making a decision not to deal with that matter. |
| Migration Act 1958, s.477(1)(A) Federal Magistrates Court Rules 2001 |
| R v Home Secretary; Ex parte Al-Mehdawi [1990] 1AC 876 Hot Holdings Pty Ltd v Creasy & Others [2002] 210 CLR 438 |
| Applicant: | SZFUZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 549 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 May 2005 |
| Date of Last Submission: | 20 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed as incompetent.
The applicant to pay the respondent’s costs assessed in the sum of $850.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 549 of 2005
| SZFUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me today a notice of objection to competency and a notice of motion seeking that an application for judicial review filed on 28 February 2005 be dismissed on the grounds that the application discloses no reasonable cause of action. The factual matrix within which these applications are made is this. The applicant applied for a protection visa on 27 January 2004, he authorised a migration agent to act on his behalf and receive communications. His protection visa application was considered by a delegate of the Minister who decided on 2 February 2004 that he was not a person to whom Australia owed protection obligations. The applicant was advised of his ability to seek review of that decision from the Refugee Review Tribunal. The applicant sought such review on or around 4 March 2004.
On 15 March 2004 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone and invited him to a hearing. On 22 March 2004 the applicant completed an invitation to hearing form in which he indicated that he would like to attend a hearing. That was received by the Tribunal on 24 March 2004. On 26 March 2004 the applicant found himself another migration agent. On that day at what appears to be 10.24 am, she faxed to the Tribunal a letter from the applicant, found at CB 41, in the following terms:
26 March 2004
Onshore Protection NSW 90324068
RRT File No 448357
I [name of applicant] born on 27 February 1967, Malaysian passport [number given] would like to withdraw my application for a Protection Visa Application Receipt Number [number given] immediately.
Signature .............. 26/03/04
According to the timing on the fax cover sheet, at 1.34 pm the migration agent wrote to the Department at Onshore Protection in the following terms:
”Please find an authorisation signed by [applicant] for Michaela Byers to act and receive communications. Thank you. Regards, Michaela Byers.”
The authorisation form signed by the applicant and by Ms Byers was faxed through at 13.42 pm.
I have to say I am somewhat confused about the fax cover sheet timing indicators at the top of documents found at CB 41, 42 and 43. As I said, the one found at CB 41 has a time of 10.24, the one at CB 42 has a time of 01.34, and the one at CB 43 has a time of 13.42, but I have no evidence about any of this and do not propose to make uneducated guesses as to what it all means. On 29 March 2004 the Tribunal wrote to the applicant [CB 44]:
“The Tribunal received a notice that you wish to withdraw your application. Accordingly, it has decided that it has no power to review the decision to refuse your protection visa. I enclose a copy of the Tribunal's decision and reasons.”
At [46] the Tribunal's reasons are found. The Tribunal states:
“On 26 March 2004 the applicant notified the Tribunal in writing that the applicant wished to withdraw his application for review. A decision to refuse to grant a protection visa is an RRT reviewable decision: s411(1)(c) of the Act. Subject to an exception not presently relevant, if a valid application is made under section 412 for review of an RRT reviewable decision the Tribunal must review that decision: S414(1) of the Act. However, an applicant may withdraw an application for review at any time before it is determined (see Unident Australia Pty Limited v Collector of Customs, 1997 143 ALR 107).
If an applicant for review withdraws the application there is no longer a valid application for review before the Tribunal (see Raru v The Minister for Immigration, Local Government and Ethnic Affairs [1993] 119 ALR 314).
The Tribunal is satisfied from the circumstances set out above that the applicant has withdrawn the application for review. Accordingly, the Tribunal finds that it no longer has a valid application before it. Therefore, the Tribunal has no jurisdiction to review the decision of the Ministers delegate.”
The first point I would like to make is that the applicant has not withdrawn his application for review, he withdrew his application for a protection visa. I do not think this matters. The review was the review of a decision on the application for a protection visa. If there is no longer an application for a protection visa, there is nothing to review. It seems to me, therefore, that the Tribunal did not commit a jurisdictional error in making its decision not to deal with this matter. The applicant, on 18 May 2005, filed in this court an amended application in which he says:
“The Tribunal made a jurisdictional error when it failed to exercise its jurisdiction and there was an actual failure to exercise that jurisdiction. I never would have withdrawn my application for a review of the delegate's decision to the Refugee Review Tribunal. The Tribunal member failed to take a particular matter into account, but I have given no instructions to have my review application withdrawn. The Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by section 414 of the Migration Act (Yusuf case per Gaudron J).
Particulars:
(2) The Tribunal members reasoning of the kind that could be labelled irrational or so illogical as to indicate a failure to perform the review function at all. See: Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 [2003] HCA 30.”
The applicant did not provide any evidence before me today. He stated that he had not given instructions to withdraw the review. He made some rather confusing statements concerning what occurred between him and the migration agent, but he did not seek to give evidence about this nor bring evidence from her. It seems to me that, at its highest, the applicant was alleging that the Tribunal had fallen into jurisdictional error because it had not provided him with procedural fairness in regard to his application and suggesting that this type of procedural fairness was the type considered by the House of Lords in R v Home Secretary; Ex parte Al-Mehdawi [1990] 1AC 876 and cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Others [2002] 210 CLR 438 at [22] where his Honour observed that:
“Procedural unfairness can occur without any personal fault on the part of the decision-maker.”
A matter of this type was considered by Dowsett J in B41 of 2003 [2004] FCA 30 where at [25] his Honour said:
“The Chief Justice's observation in Hot Holdings and the apparent approval by the Full Court in Barrett of the extract from the Court of Appeal decision in Al Medawi may suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless the outcome is consistent with general principles and good policy. In my view the Prosecutor cannot complain that his actions, taken in reliance upon advice received from his immigration adviser, led to his being denied procedural fairness.”
(emphasis added)
As I am satisfied that the Tribunal did not fall into jurisdictional error when it indicated that it had no jurisdiction to review the decision upon an application that had been withdrawn, the provisions of section 477(1)(A) of the Migration Act applies. That subsection requires that an application to this court under section 39B of the Judiciary Act and section 483A of the Migration Act must be made within 28 days of the notification of the Tribunal decision. In this case, the Tribunal decision was notified to the applicant on 29 March 2004 and the application to the court was not made until 28 February 2005, almost a year later. I am satisfied that the court is not competent to hear this matter. I dismiss the application as incompetent and order that the applicant pay the respondent's costs which I assess in the sum of $850.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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