SZFYM v Minister for Immigration
[2007] FMCA 516
•9 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 516 |
| MIGRATION – Refugee – review of delegate’s decision and Refugee Review Tribunal decision – delegate’s decision ‘cured’ by Tribunal decision – application out of time – application dismissed. |
| Migration Act 1958, ss.476(2)(a), 477(1), 477(2) |
| Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58 NAQY & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 355 |
| Applicant: | SZFYM & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2840 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 March 2007 |
| Date of Last Submission: | 29 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. I. Muthalib |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,600.
The applicant not file any application concerning the first respondent’s delegate’s decisions of 21 March 1997 and 24 July 2001, and the Refugee Review Tribunal’s decision of 31 March 1998, without first obtaining leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2840 of 2006
| SZFYM & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
The proceedings before me were commenced by an application filed in this Court on 4 October 2005 seeking review of the decisions of, a delegate of the respondent Minister made on 21 March 1997 (“first delegate’s decision”) and 24 July 2001 (“second delegate’s decision”) to refuse to grant a protection visa to the applicant, and of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 1998 (“first Tribunal decision”) and 10 July 2002 (“second Tribunal decision”). On the face of his application to this Court, in response to:
“Date when notification of the decision was received by the applicant”
the applicant provided:
“25 March 1997”
The applicant is a citizen of Bangladesh who arrived in Australia on
7 December 1996. Since that time he and subsequently his wife, who arrived on 18 November 1999, have extensively pursued protection visa applications, reviews by the Tribunal and judicial review. (See “Chronology” below). Included in his application now is the applicant’s son who was born in Australia in December 2000 (“SZFYN”). On the material before me the child relies on his father’s claim to protection.
Before me today the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language. Mr. Muthalib appeared for the respondent. In line with the applicant’s request, I heard the applicant’s matter together with that of his wife, who had filed a separate application. However, I note that I dealt with each matter separately, as they had made separate applications and their matters had previously largely travelled separately through their many instances of various merits, and judicial, review applications.
By way of background a chronology of events tendered by the respondent sets out a detailed summary of the relevant history in this matter. (The names of all the applicants (in both matters) have been deleted: “NAQZ” and “SZFYM” refer to the applicant in this matter. “NAQY” and “SZFXY” refer to the applicant’s wife. “SZFYN” is their son). I adopt this for the purposes of my Judgment. (For ease of identification references to “first” or “second” have been added to both delegates’ and Tribunal decisions as they relate to this applicant).
“CHRONOLGY
Date
Description
07 December 1996
The applicant husband, (NAQZ), arrived in Australia with an Indian passport on a visitor's visa.
12 December 1996
A protection visa application was made by NAQZ.
21 March 1997
This application was refused by a delegate of the Minister. [The “first delegate decision”]
21 April 1997
The applicant lodged an application for review of the delegate's decision to the Refugee Review Tribunal (the RRT).
31 March 1998
RRT DECISION
The RRT affirmed the delegate's decision not to grant a protection visa. [The “first Tribunal decision”]
The applicant sought review of the RRT decision (dated 31 March 1998) in the Federal Court (Federal Court proceedings no. NG 355 of 1998).
10 July 1998
FC HEARING
The applicant gave oral evidence at the Federal Court hearing before the Honourable Justice Einfeld.
11 May 1999
FC JUDGMENT
Einfeld J handed down his judgment dismissing the applicant's appeal.
07 June 1999
The applicant NAQZ, through his migration agent, requested the Minister exercise his discretion under section 417 of the Migration Act and substitute the decision of the RRT with a more favourable decision.
18 November 1999
The applicant wife, (NAQY), arrived in Australia on a temporary business visa with an Indian passport.
25 November 1999
The Minister declined to exercise his s417 discretion in NAQZ's case.
17 December 1999
The applicant wife NAQY lodged an application for a protection visa.
23 December 1999
The application of NAQY was refused by a delegate of the Minister.
12 January 2000
NAQY & NAQZ married in Sydney.
25 January 2000
The applicant NAQY applied for review of the delegate's decision in the RRT.
28 January 2000
NAQZ, through his migration agents, wrote to the Minister and made a further request under s48B of the Migration Act for Ministerial intervention.
09 March 2000
The Minister declined to exercise his discretion under s48B in relation to NAQZ's application.
09 December 2000
NAQY & NAQZ's son was born in Sydney.
08 May 2001
A second protection visa application (class XA) was made by NAQZ (& his son) with the assistance of Counsel.
15 June 2001
The (second) protection visa application of NAQZ was deemed not to be subject to the s48A bar as the previous protection visa decision was made on an invalid application.
24 July 2001
A delegate of the Minister refused to grant NAQZ a protection visa. [The “second delegate’s decision”]
26 July 2001
NAQZ applied to the RRT for a review of that decision.
26 October 2001
The RRT wrote to both the husband & wife applicants (NAQZ and NAQY) informing them that their separate applications would be heard together on 5 November 2001.
01 November 2001
Counsel for the applicants wrote to the RRT requesting an adjournment of the hearing because the applicants' house had been burgled.
02 November 2001
The RRT postponed the hearing until 12 November 2001.
08 November 2001
Counsel for the applicants requested a postponement of the hearing due to the husband applicant being ill.
16 November 2001
The RRT wrote to applicants advising that the hearing had been rescheduled to 22 November 2001.
19 November 2001
Counsel for the applicants sent the RRT various medical certificates claiming that the applicant husband (NAQZ) was unfit for work until 30 November 2001.
14 December 2001
The RRT wrote to the applicants informing them that the hearing had been rescheduled to 20 December 2001.
19 December 2001
The day before the scheduled RRT hearing a medical certificate was faxed to the RRT from the applicant's Counsel saying the applicant husband was unfit to work.
10 January 2002
The RRT wrote to the applicants informing them that the hearing had been rescheduled to 1 February 2002.
28 January 2002
Counsel for the applicants requested an adjournment of the hearing scheduled for 1 February 2002 on the basis that NAQY was suffering from back/leg pain. The hearing was not adjourned.
01 February 2002
RRT HEARING
RRT hearing. The applicants were both represented by Counsel.
10 July 2002
RRT DECISION HANDED DOWN
The RRT affirmed the delegate's decision (dated 18 June 2002) not to grant protection visas to NAQZ (& his son) and NAQY. [The “second Tribunal’s decision”]
7 August 2002
The applicants, in separate but identical applications applied to the Federal Court for judicial review.
13 September 2002
Both applications were transferred to the Federal Magistrates Court (proceedings SZ832/02 & SZ848/02)
06 December 2002
FIRST FMC HEARING
First Federal Magistrates Court hearing. Both applicants were represented by Counsel. Both applications were dismissed by Driver FM.
24 December 2002
Both applicants lodged separate but identical Notices of Appeal in the Federal Court (N1424/02 & N1423/02) appealing from the judgement of FM Driver.
24 April 2003
FC HEARING - ADJOURNED
Federal Court hearing before Hill J. On the day of the hearing the appellants asked for an ajournment as they had found Counsel who was willing to represent them. The hearing was adjourned for two weeks until 8 May 2003.
08 May 2003
FFC HEARING
Hearing of the appeals before Hill J. Appellants represented by Counsel. Hill J requested further submissions on a procedural fairness issue to be filed by 12 May 2003 and reserved his judgment.
27 August 2003
FC JUDGMENT
Both appeals were dismissed with costs by Hill J.
23 September 2003
HIGH COURT
First Application for Special Leave to Appeal to the High Court: S510 of 2003 and S511of 2003.
28 April 04
HC special leave applications deemed abandoned because both applicants (NAQY & NAQZ) had failed to comply with Order 69A Rule 10(9) of the High Court Rules.
14 April 2004
HIGH COURT
Second Application for Special Leave to Appeal to the High Court: S142 of 2004 (NAQY) and S141 of 2004 (NAQZ).
03 March 2005
McHugh and Heydon JJ dismissed both applications for special leave to appeal on the papers.
21 March 2005
2nd FMC application
Second Federal Magistrates Court application filed by applicant wife (now SZFXY), SYG701/2005 (FM Mowbray's docket).
23 March 2005
2nd FMC application
Second Federal Magistrates Court application filed by applicant husband & son (now SZFYM & SZFYN), SYG735/2005 (FM Barnes docket).
7 April 2005
Directions hearing in Federal Magistrates Court. At the request of the respondent both applications were listed on the same day before the same Federal Magistrate for the hearing on the notice of motion and notice of objection to competency.
11 May 2005
FMC JUDGMENT
The applications by SZFYM, SZFYN and SZFXY were heard before and dismissed by Mowbray FM as incompetent.
25 May 2005
SZFYN and SZFYM filed an Application for Leave to Appeal in the Federal Court.
SZFXY also filed an Application for Leave to Appeal in the Federal Court.
19 September 2005
FC JUDGMENT
Sackville J dismissed each of those applications.
4 October 2005
SZFXY and SZFYM and SZFYN filed an Application for Special Leave to Appeal to the High Court: S493 of 2005 (SZFXY) and S483 of 2005 (SZFYM & SZFYN).
3 August 2006
HIGH COURT JUDGMENT
Kirby and Callinan J dismissed each of the Application for Special Leave to Appeal by the applicants.
4 October 2006
The current applications filed in the Federal Magistrates Court.
I also took into evidence the affidavit, with annexures, of Ishan Fuad Muthalib, a solicitor in the employ of the respondent’s solicitors, made on 6 March 2007.
The applicant put before the Court two affidavits made by him on
4 October 2006, which generally assert matters going to the merits of his refugee claims and a complaint about a decision of a delegate of the Minister, although it is not clear to which decision he refers.
In any event, the applicant confirmed that he was seeking review of both the first and second delegate’s decisions, and the first and second Tribunal’s decisions. This means (with reference to the chronology above) the delegates’ decisions of 21 March 1997 and 24 July 2001 and the Tribunal’s decisions of 31 March 1998 and 10 July 2002.
I note the Minister’s Response, filed on 29 January 2007, which asserts that this Court lacks jurisdiction to review a “primary decision” pursuant to s.476(2)(a) of the Migration Act 1958 (“the Act”), and that the application now has been filed out of time pursuant to s.477(1) in that it was not made within 28 days of the actual notice (as opposed to deemed) of the delegates’ decisions or the Tribunals’ decisions.
Legislation relevant to this issue of the Court’s jurisdiction:
1)Section 476:
“SECT 476
(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
“primary decision” means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
2)Section 477 of the Act, which became operational on 1 December 2005 provides time limits to be applied to the making of applications before this Court:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
3)Irrespective of any actual notice, Schedule 1 clause 42(a) to the Migration Litigation Reform Act 2005 (“the Reform Act”), provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the MigrationAct 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b) section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
I informed the applicant of the relevant law, as I set out above, which came into operation on 1 December 2005, and its effects on the jurisdiction of this Court to hear his matter. The applicant stated he was not aware that the law had been changed and that later on when he “…realised that there is a change in the law then I was eventually out of time so I had nothing to do…”. The applicant did not submit anything further to assist the Court on the question of its jurisdiction in this matter.
I accept the Minister’s submission that both of the delegates’ decisions (21 March 1997 and 24 July 2001) are “primary decisions” falling within the definition set out in s.476(4)(a) of the Act. Both decisions are reviewable under Part 7 of the Act and were in fact reviewed by the Tribunal respectively. Pursuant to s.476(2)(a) this Court has no jurisdiction to review the delegates’ decisions.
Further, the respondent submits that the applicant has already sought and obtained de novo merits review of the first delegate’s decision ultimately resolved on 31 March 1998 by the Tribunal, and the second delegate’s decision on 10 July 2002. Both delegates’ decisions have therefore been reviewed on their merits, and any jurisdictional error if any in the delegates’ decisions have ceased to provide a basis for review (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58). I agree.
The Minister also submits that s.477 also relevantly limits the Court’s jurisdiction, in respect of all of the decisions now brought, yet again, before this Court.
The respondent notes that the applicant obtained judicial review of the first Tribunal decision in the Federal Court (NG 355/1998) and thereby must have at least had actual notification of the delegate’s decision by that time (and therefore deemed to have received notification of the Tribunal decision on 1 December 2005).
Even further, the respondent submitted that to the extent that the applicant is seeking review of the second Tribunal decision made on 10 July 2002 then the applicant is again out of time. The respondent submits that the applicant sought judicial review of the second Tribunal decision in the Federal Magistrates Court (NAQY & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 355), and thereby must have had actual notification of the delegate’s decision at least at that time (and therefore deemed to have received notification of the Tribunal decision as at 1 December 2005).
The Reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (as it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 (28 December 2006), and no extension of time is granted extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to 23 February 2006), the application is incompetent before this Court.
Therefore in relation to:
1)The delegate’s decision of 21 March 1997 the applicant made an application for review with the Tribunal on 21 April 1997. I note that the application to the Court now states that the applicant was notified of this decision on 25 March 1997. The applicant did not dispute this at the hearing before the Court.
2)The delegate’s decision of 24 July 2001 the applicant made an application to the Tribunal for review on 26 July 2001 such that it can be said that the applicant had notice respectively of the delegates’ decisions at least at the dates when applications for review were respectively lodged.
Both delegates’ decisions are migration decisions for the purposes of s.477 (see definition of “migration decision” at s.5 and definition of “privative clause” decision at s.474(2)). I am satisfied on what is before me that the Minister has discharged the burden of proving (on the balance of probabilities) that the applicant had actual notice of both decisions prior to 1 December 2005. For the purposes of s.477 he is taken to have had actual notice as of 1 December 2005.
The application to the Court now was made on 4 October 2006. This is well after the 28 day period provided for in s.477(1). The applicant did not indicate in his application whether he sought an extension of time pursuant to s.477(2). But for the Court to consider exercising the power to grant any such extension (by up to 56 days) this would have required the application to have been made by 23 February 2006. It was not. This Court therefore lacks jurisdiction to review the delegates’ decisions pursuant to s.477.
Similar reasoning applies to the applicant’s application that the Court review the Tribunal decisions of 31 March 1998 and 10 July 2002. In relation to these decisions, respectively:
1)The applicant sought judicial review of the decision of 31 March 1998 in the Federal Court, which was heard on 10 July 1998. (See pages 3 to 7 of the annexure to the affidavit of Mr. Muthalib).
2)The applicant sought judicial review of the decision of 10 July 2002 on 7 August 2002 (see pages 33 to 38 of the annexures to the affidavit of Mr. Muthalib). (This was transferred to the Federal Magistrates Court and subsequently the applicant took his matter to the Federal Court and the High Court).
I am satisfied on what is before me that the Minister has discharged the burden of showing that the applicant had actual notice of the respective Tribunal’s decisions. The applicant would have had actual notice at least as at the times he first took each decision to a Court.
Both occasions were well before 1 December 2005. By operation of the Reform Act he is taken to have had notice of both decisions on
1 December 2005. The application to this Court was filed well after the (ultimate) time limit of 23 February 2006. The Court therefore does not have jurisdiction in relation to these decisions.
In all, this Court has no jurisdiction to hear the applicant’s complaints about the first and second delegates’ decisions and the first and second decisions of the Tribunal. I agree with the Minister’s submission that the application should be dismissed as incompetent. I dismiss the application on that basis.
Given the circumstances of the history of litigation involving the decisions of 21 March 1997, 31 March 1998 and 24 July 2001 it is appropriate that an order be made that the applicant not file further applications in this Court in relation to these decisions without leave of the Court. Noting also that many opportunities for review afforded the applicant in relation to these decisions and his seeming indifference, at the very least, to the judgment of Federal Court justices on appeal from this Court and ultimately to the High Court of Australia (3 occasions).
The Minister also seeks an order for costs on an indemnity basis. Given that the matter today did not proceed beyond the issue of jurisdiction I did not agree to a costs order on this basis. Nonetheless it is appropriate that a costs order be made in respect to the applicant only (the second applicant, his son, is of course a minor), and I will accordingly make such an order.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 23 April 2007
2