SZGKR v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FMCA 1316
•25 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGKR & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1316 |
| MIGRATION – Protection Visa application – judicial review of delegate’s decision – decision previously affirmed by Tribunal and its decision upheld by Courts – whether delegate’s decision validly notified – discretionary reasons for refusing relief – application dismissed – direction that no further judicial review application be received. |
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11(1)(c)
Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.66, 66(1), 66(2), 66(2)(d)(ii), 66(4), 412, 414, 415, 474, 477(1A), 483A, 494B(4), 494C, 494C(4), Pt.7
Migration Regulations 1994 (Cth) (Compilation date 13:10:1999), regs.4.31, 4.31(2)(b), 5.03
Commissioner of Police v Gordon [1981] 1 NSWLR 675
Glennan v Commissioner of Taxation (2003) 198 ALR 250
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
NAGU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1435
NAGU v Minister for Immigration [2002] FMCA 154
Narain v Parnell (1986) 9 FCR 479
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581
SZDCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 647
SZDCN & Anor v Minister for Immigration [2004] FMCA 1103
Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294
| First Applicant: | SZGKR |
| Second Applicant: | SZGKS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1381 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 25 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2005 |
REPRESENTATION
| Counsel for the Applicants: | Applicants in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $6,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 2 April 2002 reference N99/30586 or for review of the decision of the delegate of the respondent dated 29 October 1999 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1381 of 2005
| SZGKR |
First Applicant
| SZGKS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The application in this proceeding was filed on 27 May 2005 as an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) invoking the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Jurisdiction under s.39B of the Judiciary Act allows relief of the nature given by the High Court in its Constitutional jurisdiction.
An amended application has been filed which seeks the same relief, but also invokes jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, that jurisdiction would require an order under s.11(1)(c) extending a time limit which has long passed, and for reasons which appear below I would refuse. I am also unpersuaded that invocation of this jurisdiction would enhance their position.
The applicants also have filed an application which seeks interim orders which appear designed to obtain an adjournment while the applicants pursue a High Court proceeding on a Constitutional issue which they have identified in a Notice of Constitutional Matter, and to obtain a more favourable form of bridging visa during the adjournment. However, for reasons which I shall give below, I have decided that I am not obliged to adjourn the proceedings, but am able to decide their substantive application forthwith. I therefore do not need to consider their interlocutory entitlements in relation to bridging visas.
The substantive application identifies as the subject matter of the application a decision of the delegate dated 29 October 1999 “DIMIA file number CLF1999/5588”. This was a decision in which the delegate exercised the Minister’s power to refuse two applications for protection visas in relation to a husband and wife, who are the present applicants before me. Their claims for protection visas relied on acceptance of the factual claims of the husband and he has been referred to as “the applicant” in many of the papers and decisions in evidence before me. Where I make reference to “the applicant” it will be in that sense.
A letter sent to the applicant notifying him of the decision is dated 29 October 1999. There can be no doubt that it was posted and received by the applicants within whatever time limits were applicable for them to appeal to the Refugee Review Tribunal (“the Tribunal”), since in fact they did appeal within time. Their application for review was lodged on 17 November 1999 and jurisdiction was accepted by the Tribunal. The Tribunal then proceeded to perform its duty to review the delegate’s decision under s.414 and to make a final determination in relation to its review under s.415.
The Tribunal’s decision was dated 11 March 2002 and was handed down on 2 April 2002. It was formulated in these words: “The Tribunal affirms the decision not to grant protection visas”.
It is unnecessary for me to review the circumstances that were put forward in support of the applicants’ claims for refugee protection, and how the Tribunal dealt with them, since these are indicated in the judgments to which I shall refer. In short, the Tribunal did not find the applicant husband “to be a credible or truthful witness” in relation to any of his significant claims to fear persecution if he returned to Bangladesh.
As I shall set out below when addressing discretionary considerations in this case, the applicants then embarked on a long history of litigation challenging the Tribunal’s decision. That litigation ultimately came to an end on 9 May 2005 with a judgment of Bennett J, to which I shall refer below. The applicants then faced orders of both this Court and the Federal Court which precluded the filing of further applications for judicial review of the Tribunal’s decision.
The present application was filed on 27 May 2005 and, as I have indicated above, sought to challenge the delegate’s decision and not the Tribunal’s decision. It seeks the following orders:
1.An Order and or Declaration that the notification by the delegate of the Minister to refuse to grant a Protection visa is invalid and has no effect.
2.An Order and or Declaration that the decision by the delegate of the Minister has no effect.
3.An order to redirect this matter to DIMIA to notify the applicant according to law.
4.An order not to remove the applicant from Australia while a decision is pending.
5.Costs. And
6.Any further Order that this Honourable Court may deem appropriate.
7.The applicants be granted BV‑A since the notification is invalid.
The grounds for seeking relief by way of an order that the applicant “be granted BV‑A” is difficult to understand on the evidence that has been filed by the applicant. It appears to attempt a challenge to an opinion which has been conveyed in correspondence by the Department to the applicant from time to time concerning his entitlements to bridging visas prior to a letter of 30 March 2004 which is in evidence.
The significant difficulty with this prayer for relief is that the Court has no power itself to order the grant of bridging visas to the applicants. Moreover, on the material they have presented to the Court, they have not identified an administrative decision in relation to eligibility for a bridging visa A with any particularity allowing me to investigate what considerations were or were not given to their eligibility for this particular species of bridging visa. Necessarily, the respondent has also been unable to present the Court with any information allowing an investigation of any particular decision concerning the applicant’s eligibility to bridging visa A. Moreover, the absence of any particularity prevents the Court investigating questions of delay in seeking relief – which may well be considerable.
In those circumstances, I consider that this prayer for relief must be refused. I note that the applicant is currently on a bridging visa of a different class which is abased on the currency of the current application, but that he tells me that he would prefer to have a bridging visa A since that would give him permission to work.
In relation to the declaration sought as to the invalidity of the delegate’s decision, the applicants have presented their argument in a number of documents including some lengthy written submissions. As I understand it, the basis on which the delegate’s decision is argued to be invalid arises from an alleged incorrectness about the notification of review rights in the delegate’s notification letter to the applicant dated 29 October 1999. The relevant part of the letter said:
Review Rights
You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866).
I have enclosed a brochure about how you can apply to the RRT. Application forms are available from the RRT or from any Regional Office of the Department of Immigration and Multicultural Affairs.
If you decide to apply for review, you must lodge your application with the RRT within 28 days of receiving this letter. You are taken to have received this letter 7 days after the date of this letter.
The applicants argue that the last sentence of this was incorrect, and that this resulted in the notification failing to comply with s.66 of the Migration Act.
At all relevant times, s.66 has provided:
Notification of decision
(1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2)Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa–specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa–specify that provision; and
(c)unless subsection (3) applies to the application–give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500–state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
(3)This subsection applies to an application for a visa if:
(a)the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b)this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4)Failure to give notification of a decision does not affect the validity of the decision.
(5) …
The applicants’ argument is that s.66(2)(d)(ii) required a notification to “state … the time in which the application for review may be made”, and the present letter did not do that. Although it correctly identified a 28 day time limit for appealing after receipt of the letter (at that time provided in reg.4.31), the statement: “you are taken to have received this letter seven days after the date of this letter” was incorrect. The applicants’ argument was that the incorrectness of that statement then led to the invalidity of the decision which had been notified, and a declaration to that effect should be given by the Court.
This argument fails on its merits at many points, and there are also powerful discretionary reasons for refusing relief to which I shall refer below.
I consider that the short answer is that the validity of the notification of appeal rights could not go to the validity of the delegate’s decision itself (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [41‑46]).
Another difficulty facing the argument is the provisions of s.66(4), which expressly validates a decision even if compliance with notification requirements would otherwise go to validity.
The applicants anticipated the problem presented by s.66(4), and sought to overcome it by way of a contention made in a “Notice of a Constitutional Matter” filed in the Court on 16 August 2005. The applicants submitted to the Court that the filing of this notice gave rise to obligations on the Court to adjourn under s.78B of the Judiciary Act. I declined to adjourn because, in my opinion for reasons which follow, the notice did not give rise to an issue which “involves a matter arising under the Constitution or involving its interpretation”. There is good authority that the mere filing of a notice does not tie the hands of the Court (see Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 endorsed by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation (2003) 198 ALR 250, and also Narain v Parnell (1986) 9 FCR 479).
The applicants’ Notice of a Constitutional Matter contended:
1.The applicants challenge the constitutional validity of s66(4) of the Migration Act 1958.
2.The applicants claim that s66(4) of the Migration Act 1958 is conflicting with the purpose of s66(1), s494(C) of the Migration Act 1958 and relevant regulations.
3.The applicants claim that the power to exercise the provisions in s176 – s224 of the Migration Act 1958 is not constitutionally valid if the provisions in s66(1), s494(C) of the Migration Act 1958 and relevant regulations were not observed according to law.
In my view, this plainly does not raise any issue having a constitutional flavour, but seeks to argue invalidity of s.66(4) based on inconsistency with statutory provisions found elsewhere in the same legislation and its subordinate legislation. No constitutional issue would be involved in such an argument. I therefore did not consider that I was obliged to adjourn.
Moreover, the contended inconsistency is without any apparent basis and has not been explained in the arguments made by the applicants.
I therefore consider that s.66(4) provides an additional reason why the applicants would not be entitled to relief in relation to the delegate’s decision.
Further reasons may also arise why the present application challenging the delegate’s decision must fail. Even if there were invalidity in the delegate’s decision which might have been arguable in a Court in proceedings brought before the applicants pursued their rights to merits review, the applicants elected to obtain a full legal and merits review of their entitlements to protection visas, by pursuing their rights of application under Part 7 of the Migration Act. That Tribunal had jurisdiction to review a delegate’s decision which was legally invalid (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 at [33‑34]), and if judicial review relief had been sought the applicants would probably have been expected to pursue their Part 7 rights (c.f. McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 and cases cited therein).
I accept submissions for counsel for the Minister that the applicants’ pursuit of merits appeal, at least subsequent to the Tribunal’s making of a decision under s.415, rendered legally irrelevant the validity of the delegate’s decision for the purposes of any current entitlements of the applicants. Nor have they satisfied me as to any past entitlements in relation to which the declarations now sought would serve any utility. There could be no entitlement to have the Minister or her delegate resume or complete any decision-making on the applicants’ visa applications, since in my opinion under the scheme of decision‑making in the Migration Act the Minister became functus officio in relation to her powers of decision in relation to their protection visa applications after an application for merits review had been made and determined by the Tribunal (c.f. Commissioner of Police v Gordon [1981] 1 NSWLR 675 at 689C, and Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 at 299G, and contrast Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5‑13] and [50‑60]).
For the above reasons, I consider that there is no merit in the applicants’ current challenge to the delegate’s decision. For reasons that I will come to, I also consider that the processes of the Court are being abused by the current application seeking to raise the validity of the delegate’s decision at this stage in the litigation history of the applicant.
The applicants’ argument supporting their separate prayer for relief in relation to notification of the delegate’s decision is also, in my opinion, lacking in merit. To explain this, I must identify more clearly the incorrectness which has been argued to vitiate the notification, since my above reasoning in relation to the delegate’s decision had assumed that there may have been a failure to comply with s.66(2) in relation to the notification.
The applicants’ argument is that the notification did not comply with s.66(2)(d)(ii) because it did not accurately refer to the effect of s.494C(4) of the current Act when stating: “you are taken to have received this letter seven days after the date of this letter”. Section 494C(4) now deems receipt of a document sent by prepaid post seven working days after the date of a document sent under s.494B(4) that is dispatched within three working days of its date. The applicant focussed on the absence of the words “working days” in the 1999 letter.
This argument fails for a basic reason that s.494C(4) was not in effect at the time when this letter was sent. At that time Migration Regulation 5.03 had been proclaimed, under which a deemed date of receipt was “7 days after the date of the document”. The letter therefore was correctly expressed in terms of the legislation at the time.
However, counsel for the Minister has reminded the Court that reg.5.03 was subsequently found to be legally ineffective in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77, where their Honours held that it was not authorised by the regulation‑making power in the context of a 28 day period for appeals prescribed by reg.4.31(2)(b) pursuant to s.412 of the Act. Their Honours took the view that the operation of reg.5.03 could shorten that period in a manner that gave rise to inconsistency and invalidity.
However, the invalidity of the regulation only had the effect that the
28 day time period took actual effect, that is, from the date of actual receipt. In the case before their Honours, they were able to find that a decision by a Tribunal denying jurisdiction based on the time limits was wrong, and that the Tribunal should have exercised jurisdiction.
I am unpersuaded that Singh (supra) can assist the applicants in the present situation. They do not need to rely on the invalidity of reg.5.03 to establish any right that I can see on the material before me. In fact they did appeal within time, and the Tribunal accepted jurisdiction. Moreover, I do not consider that the letter materially misstated “the time in which the application for review may be made” for the purposes of s.66. All that was incorrect about it was its suggestion that there was a valid deemed receipt regulation in operation. I cannot see how an incorrect assumption by the author of the letter as to the validity of a deemed‑receipt provision deprived the letter of “validity” as a notification of the delegate’s decision for the purposes of the Migration legislation.
Moreover, even if there were now room for doubt about the “validity” of the letter as a notification under the legislation, I am unpersuaded that there is any utility in making a declaration that “the notification by the delegate of the Minister … is invalid and has no effect”. The applicants have failed to present an argument with proper evidentiary basis to show that this issue has any bearing on their current rights, not that it is a matter of proper controversy with the Minister so as to be addressed by the Court by way of declaration.
My further reason for refusing this, and all other prayers for relief, is based on discretionary considerations arising from the history of litigation by the applicants. That history was as follows.
As I have indicated above, the applicants did obtain a merits review of the delegate’s decision made on 29 October 1999 in a decision by the Tribunal that was handed down on 2 April 2002.
The applicant husband then made an application for review by the Federal Court, which was transferred to the Federal Magistrates Court and was dismissed by Driver FM. After a hearing on its merits on 24 July 2002, his Honour addressed generally whether the decision of the Tribunal was vitiated by legal error or by bias, and found that it was not (see NAGU v Minister for Immigration [2002] FMCA 154). His Honour did not rely upon the privative clause provisions of s.474 when dismissing the application for prerogative relief.
An appeal from his Honour’s decision was taken to the Federal Court, where it was dismissed by Conti J on 12 November 2002 (see NAGU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1435). His Honour indicated that the applicant was refused an adjournment, and did not attend the hearing. However, his Honour considered the merits of the matter, and said that he had been unable to discern any error in the reasons for judgment of Driver FM. He said that “the dismissal of the appeal, on the basis of the material I have before me, would have been inevitable”.
The applicant then on two occasions made applications for special leave to appeal to the High Court. The first was deemed abandoned on 18 July 2003 for non‑compliance with the rules of the High Court in relation to the filing of supportive material. The second application was similarly deemed abandoned on 23 February 2004.
Both applicants then commenced fresh proceedings for judicial review in the Federal Magistrates Court, again seeking review of the Tribunal’s decision. Federal Magistrate Driver dismissed the application on 21 June 2004 (see SZDCN & Anor v Minister for Immigration [2004] FMCA 1103). His Honour took the view that his previous findings, which had not been set aside on appeal, amounted to findings that the decision of the Tribunal was “not infected by any jurisdictional error and is therefore a privative clause decision”. He therefore upheld a notice of objection to competency which relied upon the time limit in s.477(1A) of the Migration Act in relation to proceedings in this Court in its migration jurisdiction. His Honour at the end of his judgment expressed the opinion:
… the Minister should not have to be troubled in this Court by a further application in respect of the same RRT decision unless the Court can be satisfied that there is a proper basis for the application. I will order that no further application for judicial review of the decision of the Refugee Review Tribunal, made on 2 April 2002, in relation to this applicant, be accepted for filing in this Court except by leave of the Court.
As I have indicated, his Honour’s judgment bound both of the present applicants.
The applicants sought to appeal from the orders made by Driver FM, and made an application to obtain leave to appeal out of time which was refused by Bennett J on 9 May 2005 (see SZDCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 647). Her Honour said:
There is no apparent basis for any claim that the decision of the Federal Magistrate is attended by sufficient doubt. There is no indication of special reasons on which to base an exercise of discretion to grant the extension of time.
She referred to the previous litigation and gave the opinion that:
In all the circumstances, it is not apparent to me that any substantial injustice would be caused to the applicants by a refusal of the application for leave and an extension of time.
She ordered in relation to the Federal Court, as Driver FM had ordered in relation to this Court, that:
… no further application for a judicial review of the decision of the Tribunal handed down on 2 April 2002 be accepted for filing in this Court except by leave of the Court.
In my opinion it is a reasonable inference from the above history that the present proceeding has been framed as a challenge to the delegate’s decision as a means of circumventing the outcome of the previous litigation, and, in particular, the orders preventing the applicants from further vexing the Minister with unmeritorious applications in relation to the Tribunal decision which concluded the administrative decision‑making on the applicants’ 1999 protection visa applications.
The matter was listed today both for a final hearing on the substantive application, and also for hearing of a motion by the Minister for the proceeding to be dismissed as an abuse of process. In view of my opinions on the substantial merits of the matter, I have not found it necessary to address the motion. However, in my view the history that I have recounted above clearly shows that it would have succeeded. In my opinion, notwithstanding that technically the present proceeding does challenge a different decision, it was doomed to failure and was an abuse of process not only through its lack of substantive merits explained above, but also because of discretionary considerations which would inevitably lead to the refusal of relief on discretionary grounds. McHugh J has recently identified these in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]:
The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (citations omitted)
In my opinion, the applicants’ pursuit of merits review of the delegate’s decision, and their subsequent pursuit of judicial review in relation to the validity of the Tribunal’s decision which affirmed it, was clearly “conduct of the party inconsistent with the application for relief”.
It has also given rise to many years of delay which warrant the refusal of relief.
I consider that these considerations go to all heads of relief sought by the applicants. If, which I am unpersuaded, the legal effect of the notification of the delegate’s decision has had effects on the bridging visa entitlements of the applicants, then these should have been pursued earlier and in the course of the litigation which the applicants have engaged in as recounted above. In my view, in all the circumstances it is now too late for them now to be seeking to raise contentions challenging the legal effects of the letter received by them in October 1999.
When expressing the above opinions about discretion, I have borne in mind the applicant’s submission that he suffers hardship by staying in Australia on bridging visas arising from their current judicial review proceedings which do not carry permission for work. I also accept that the effect of my judgment may bring to an end even that entitlement, and that the applicants may have to contemplate returning to their country of nationality and suffering significant hardships as a result. However, in my opinion considerations of the proper administration of justice require that I should not overlook the abuse of process represented by the current application.
For all the above reasons I consider that the substantive application should be dismissed.
RECORDED : NOT TRANSCRIBED
The Minister’s application for summary dismissal also sought an order repeating and extending the previous order of Driver FM in relation to the filing of further applications, so as to encompass the delegate’s decision. In the circumstances recounted above, I consider that it is appropriate to extend the direction, and also to include reference to the notification of the two decisions. The Court’s authority to make orders of this sort has been upheld by Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 212 ALR 581 at [29].
The same circumstances in my view makes it appropriate that the Minister be awarded costs on an indemnity basis.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 September 2005
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