SZGLN v Minister for Immigration
[2005] FMCA 1843
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1843 |
| MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement of judicial review application dismissed due to non appearance – no serious issue to be tried – reinstatement application dismissed. |
| Migration Act 1958 (Cth), s.48 |
| First Applicant: | SZGLN |
| Second Applicant | SZGLO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1430 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
The applicants appeared in person
| Solicitors for the Respondent: | Mr Z Chami Clayton Utz |
INTERLOCUTORY ORDERS
The Court directs that the name of the first applicant is not to appear on the transcript of proceedings.
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application for reinstatement is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application filed on 26 September 2005, fixed in the sum of $1,000.
The Court notes that the address for service of the applicants is 7/74 Robinson Street, Punchbowl.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1430 of 2005
| SZGLN |
First Applicant
| SZGLO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 26 September 2005. The application seeks the reinstatement of a judicial review application filed on 1 June 2005. The applicants in the reinstatement application are the same as those in the judicial review application although they are reversed in order. Nothing in particular turns on that. The Refugee Review Tribunal (“the RRT”) should be a party to both applications. I will order that the RRT be joined as the second respondent.
The general background to these proceedings is set out in written submissions prepared on behalf of the Minister for Immigration. Those submissions were prepared in support of a motion for the summary dismissal of the judicial review application and also a notice of objection to the competency of it. I adopt as background paragraphs 1‑7 of the Minister's written submissions:
This is an application seeking review of a decision made by the RRT on 10 September 1996 by which the RRT held that it did not have jurisdiction to review a decision of the delegate of the respondent[1].
[1] court book, pages 95-108.
A chronology is attached to these submissions which sets out the relevant history of the applicant's applications and dealings with the respondent's department.
In short, the first applicant and his spouse are nationals of Fiji who arrived in Australia in about 1989 and their application for refugee status was first refused by a delegate of the respondent on 14 October 1992[2]. On 28 June 1994 the RRT affirmed a decision of the respondent's delegate to refuse the first applicant the grant of a protection visa. On 29 September 1994 the RRT also affirmed a decision of the respondent's delegate refusing the grant of a protection visa to the second applicant.
On 30 May 1995 the second applicant lodged a protection visa application. This application was refused on 8 August 1995[3]. Again, on 5 October 1995 the applicant applied for a further protection visa[4]. This application was refused by a delegate of the respondent on 7 December 1995 on the basis that the application was invalid because of the bar imposed by s.48 of the Migration Act 1958 (Cth) (“the Migration Act”)[5].
On 9 January 1996 the applicant sought RRT review of the 7 December 1995 decision. On 10 September 1996 the RRT held that it did not have jurisdiction to review the decision because the application was lodged outside the prescribed time limit of 28 days (note: the applicant's adviser asked the RRT to review the 8 August 1995 decision and not the decision of 7 December 1995)[6].
On 1 June 2005 the applicants sought judicial review of the 10 September 1996 RRT decision.
Application for judicial review
The application filed in this Court on 1 June 2005 pleads 2 grounds as follows:
a)the purported decision of the RRT does not reflect that it was made in good faith according to the rules of natural justice;
b)the RRT erred in law in determining it did not have jurisdiction to review the matter.
[2] court book, pages 48.
[3] court book, pages 12-36 and 44.
[4] court book, pages 58 - 83.
[5] court book, page 84.
[6] court book, page 100.8.
On 19 September 2005 the Minister's motion and objection to competency came before me for hearing. The applicants failed to appear and I accordingly dismissed the judicial review application. I also ordered the applicants to pay the Minister's costs.
The present reinstatement application is supported by an affidavit by the second applicant on the reinstatement application. The affidavit is not in proper form in that it lacks a translation certificate. However, the applicant confirmed both from the bar table and from the witness box that the affidavit was true and correct and I received it. Essentially, the second applicant on the reinstatement application, as well as his wife, assert that they were unable to attend court because their train was late. They were also confused as to where they needed to go. I accept that this evidence is truthful. I accept that they failed to attend court because of circumstances beyond their control. In some circumstances that would be sufficient to justify a reinstatement of a judicial review application. However, even where sufficient explanation for non attendance at court is given, the Court must also satisfy itself that there is a serious question to be tried.
Under cross-examination, the second applicant on the reinstatement application confirmed the essential details of the history of his dealings with the Minister's Department and the RRT. That history is set out in a chronology annexed to the Minister's submissions and I adopt it for the purposes of this judgment:
28 December 1988
The male applicant arrives in Australia
31 January 1989
The female applicant, a national of Fiji, arrives in Australia
23 October 1990
She lodges "an application for refugee status" with the Department of Immigration and Ethnic affairs through Hardy's Lawyers.
21 May 1992
Transpacific Migration agents begin to act for applicants
14 October 1992
A Delegate of the Minister ("Delegate") refuses the application and the applicant is notified the same day of the decision.
approx 14 November 1992
The applicant applies for review of that decision to the Refugee Status Review Committee.
Date unknown
The application is transferred to the RRT.
28 June 1994
The RRT affirms the delegate's decision. No hearing is held as the RRT is unable to contact the applicant.
30 May 1995
The applicant lodges a protection visa application.
27 June 1995
A letter is sent by certified mail to the applicant requesting her to provide comments or further information related to her claims.
Date unknown
Letter returned to sender.
8 August 1995
A Delegate refuses the grant of a protection visa. A letter is sent to the applicant notifying her of the decision the same day.
Date unknown
Letter returned to sender.
5 October 1995
The applicant applies for a protection visa.
7 December 1995
A Delegate writes to the applicant informing her that she may not make a further application for a protection visa unless the Minister decides it is in the public interest.
9 January 1996
RRT receives an application for review of the 7 December 1995 decision.
22 January 1996
A withdrawal notice is received by the RRT in relation to the 9 January 1996 application.
1 February 1996
The applicant's adviser asks the RRT to disregard the withdrawal and regard the application as an application for review of the 8 August 1995 decision.
Date unknown
RRT forms the view the 9 January application, regardless of which decision it sought to review, was invalid because it was not filed within the prescribed time limit. RRT invites submissions from the applicant on this point.
8 March 1996, 20 May 1996, 12 July 1996, 18 July 1996 and 3 September 1996
applicant's adviser makes written submissions.
9 August 1996
The applicant attends a hearing to address the question of the RRT's jurisdiction.
10 September 1996
RRT holds that it does not have jurisdiction to review the decision refusing to grant the applicants a protection visa.
1999
Applicants join Muin & Lie class action.
21 August 2000
applicants discontinue/withdraw from class action.
15 June 2003
s.417 Ministerial intervention request.
1 June 2005
applicants apply for judicial review of the 10 September 1996 decision.
The judicial review application, if reinstated, would be doomed to fail for several reasons. The first is that there is no substance to the allegation of bad faith levelled against the RRT and neither is there any evidence to support the assertion of a breach of the rules of natural justice. It is certainly arguable that the RRT erred in law in determining that it did not have jurisdiction to review this matter in its decision in 1996. However, there is no real doubt that the decision made by the RRT that it lacked jurisdiction was correct. The only doubt concerns the reasons for that decision.
It seems to me that there are only two possibilities. Either the RRT was correct in finding that it lacked jurisdiction because the review application to it was made late. Alternatively, the RRT lacked jurisdiction because the protection visa applications which had been made were invalid. It is certainly arguable that the protection visa applications considered by the RRT in 1996 were invalid as the applicants had made earlier applications which had been rejected. However, no attack is made on that earlier rejection and a successful outcome of these proceedings would be futile. That says nothing about the very significant delay in bringing these present proceedings. That would be a further issue for the Court to consider, even if jurisdictional error were proved.
In my view, there is no serious question to be tried in these proceedings. Accordingly, the reinstatement application should be refused.
The second applicant in the reinstatement application confirmed under cross-examination that the substantial reason for the proceedings in this Court was because he and his wife wished to live in Australia. They have been here since either 1988 or 1989. As far as I am aware they have led a blameless life in this country. They must have gone a long way to being absorbed into the community. It appears that for much of the time they have lived in Australia they have worked and they say they have paid taxes. If they are productive persons who offer something of value to this country then there is a serious question for the Minister to consider whether by one route or another they should be permitted to remain here permanently. That is not for me to decide.
These proceedings are not the appropriate vehicle for the applicants to seek to extend their stay in Australia. It is remarkable that they have been here since 1988 continuously and the time must surely be fast approaching when a final decision should be made on their future.
I dismiss the reinstatement application.
Costs should follow the event. The Minister seeks an order for costs fixed in the amount of $1,000. This is in addition to the costs order made by me on 19 September 2005. The applicants indicated that they would wish to pay by instalments. I informed them that that was a matter they could take up with the Minister's lawyers. The amount of costs sought is reasonable when assessed on a party and party basis. I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application filed on 26 September 2005, fixed in the sum of $1,000.
Finally, the Court notes that the current address for service of the applicants is 7/74 Robinson Street, Punchbowl.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 December 2005
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