SZGNL v Minister for Immigration
[2005] FMCA 1725
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNL v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1725 |
| MIGRATION – Review of Refugee Review Tribunal decision – review application made out of time – RRT correctly found that it lacked jurisdiction – summary dismissal of judicial review application as disclosing no reasonable cause of action. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 412, 424A, 424C, 474, 494B, 494C, 494D Migration Regulations 1994 |
| Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 Silia v Minister for Immigration & Anor [2005] FMCA 1723 |
| Applicant: | SZGNL |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1544 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 21 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr A Cox – Phillips Fox |
INTERLOCUTORY ORDERS
The judicial review application as amended is dismissed as disclosing no reasonable cause of action.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1544 of 2005
| SZGNL |
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 a motion by the respondent Minister seeking the summary dismissal of a judicial review application. Notice of the motion was given on 28 July 2005. The judicial review application was filed on 15 June 2005. It related to a decision of the Refugee Review Tribunal (“the RRT”) made on 16 May 2005. The judicial review application was amended on 19 September 2005. The Minister did not object to that amendment. The Minister's motion therefore bears on the judicial review application as amended.
The Minister's motion came before me for hearing on 29 August 2005. It was apparent then that the issue to be determined was whether the RRT was correct in its finding that it lacked jurisdiction because the review application made to it was made out of time. On the basis of the court book filed on 12 July 2005 it appeared that the RRT decision was correct. However, I gave the applicant until 20 September 2005 to file further evidence bearing upon the circumstances of the making of his review application to the RRT. I also gave the applicant the opportunity to amend his application to include a challenge against the decision of the Minister's delegate which preceded the decision of the RRT. The amended application filed on 19 September 2005 is limited to a challenge to the decision of the RRT.
When I enquired of the applicant during oral argument why he had not taken advantage of the opportunity I had given him he told me that he had been assisted by Mr Zahirul Hoq Mollah, a former migration agent. The applicant told me from the bar table that he had paid Mr Mollah some money for his assistance but it appears that that payment was well before the proceedings were commenced in this Court. It appears that whatever assistance Mr Mollah may be giving the applicant in these proceedings, he has not been paid for it. When pressed by me, the applicant told me that he did wish to rely upon his judicial review application as amended. He said that it was his application and that he understood it. I also permitted the applicant to file in court written submissions. The applicant gave me to understand that Mr Mollah has also assisted him in the preparation of those submissions.
Unfortunately for the applicant, both his amended application and his written submissions entirely miss the point which was clear when the matter was last before me on 29 August 2005. That is whether the RRT was correct in its finding that it lacked jurisdiction.
The Minister's motion, which is supported by the affidavit of Anthony Cox filed 28 July 2005 and written submissions filed in my chambers on 26 August 2005, is based upon the proposition that the decision of the RRT is so obviously correct that the judicial review application should be summarily dismissed. I agree.
I agree with and adopt as amended by me for the purposes of this judgment the following parts of the Minister's written submissions:
The grounds of the application do not make any apparent legal sense given the decision of which judicial review has been sought.
Background
The applicant is a male citizen of Mongolia.[1] He arrived in Australia on 3 August 2004.[2]
[1] court book, page 12
[2] court book, pages 14, 28
The applicant applied for a protection visa on 26 August 2004.[3] His claims were set out on the application form.[4] The application was refused on 14 October 2004.[5]
[3] court book, page 12
[4] court book, pages 18-21
[5] court book, page 43
The applicant applied to the RRT for review of the delegate's decision on 7 March 2005.[6]
[6] court book, page 44
The decision of the RRT
The RRT formed the preliminary view that it did not have jurisdiction as the review application was received outside the prescribed time limit.[7]
[7] court book, page 53
It wrote to the applicant's authorised recipient by letter of 15 April 2005 and advised that the application appeared to have reached it too late. It stated that the RRT had no power to consider late applications.[8] The letter set out the dates of relevant events which the RRT thought were pertinent to the question of jurisdiction.
[8] court book, page 50
The RRT did not receive a response to its letter.[9]
[9] court book, page 53.4
In deciding that it did not have jurisdiction the RRT made the following findings in respect of its jurisdiction:
a)The delegate's decision notice complied with the requirements of s.66(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
b)The notice was dated 14 October 2004.
c)The departmental files indicated the applicant had provided the Minister written notice of the name and address of an authorised recipient under s.494D of the Act.
d)That decision notice was sent by registered mail to the authorised recipient on 15 October 2004.
e)A copy was also sent to the applicant at his residential address.
f)The decision notice was sent within 3 working days to the applicant's authorised recipient in accordance with ss.494B(4) and 494D of the Act. Accordingly the applicant was taken to have received the notice on 25 October 2004.
g)The 28 day period within which the review application had to be lodged ended on 22 November 2004.
h)The application for review was not received until 7 March 2005 which after the prescribed period had expired.
Legislative framework
The decision of the RRT in the present case is a privative clause decision as defined by section 474(2) of the Act. With respect to privative clause decisions, section 474(1) provides:
A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476, the High Court upheld the validity of section 474. It then went on to consider how section 474 should be reconciled with the remainder of the Act. The leading judgment is the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). In the central passage concerning the operation of section 474, their Honours held that:
[76] …the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.
Section 474 therefore validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
The respondent's submissions
The respondent seeks that the matter be summarily dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The respondent submits that there is no reasonable cause of action disclosed in relation to the proceedings.
The RRT's decision was that it had no jurisdiction to deal with the applicant's review application. The grounds on which the application are based appear to bear no relationship to that decision. There are also no particulars given that bear any relationship to that decision.
The established proposition is that orders summarily striking out a proceeding should only be made where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed.[10]
[10] General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236; Webster v Lampard (1993) 177 CLR 598 at [611]; Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]; Applicant A 163 of 2002vMinister for Immigration (2002) FCA 677 at [1]; Applicant A135/22002vMinister for Immigration [2003] FCA 708 at [3]-[6];E Chhoun v Minister for Immigration [2004] FMCA 72 at [19]; SZBWF v Minister for Immigration [2004] FMCA 83 at [24].
The proposition is further described by the principle that it must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case that would fail if it were to go to trial.[11]
[11] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194; Xie v Immigration Department [1999] FCA 365 SZBWF v Minister for Immigration [2004] FMCA 83 at [26] – [27].
There is a further condition placed on the respondent's application, in that where an applicant be unrepresented, the Court should independently consider whether an arguable case based on the material could be made out by the applicant.[12]
[12] Chung v University of Sydney [2001] FMCA 94 at [14]; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186; Kosi v Minister for Immigration [2003] FMCA 340.
As the grounds of this application bear no sensible relation to the decision of which judicial review is sought it is submitted that the application is plainly untenable and cannot succeed.
That there is no arguable case that can be made in relation to the decision under review can be seen by considering the following:
a)The delegates decision was made on 14 October 2004 and sent to both the applicant's authorised recipient and to the applicant himself[13]: court book, pages 31,32.
[13] Ss.66, 494B(4), 494D of the Act; r.2.16 Migration Regulations 1994 apply.
b)The applicant had nominated the authorised recipient by completion of the relevant official form on 25 August 2004[14]: court book, page 11.
[14] s.494D
c)The application for review made to the RRT was made on 7 March 2005: court book, page 44.
d)That applicant nominated an adviser on that application and authorised that person to receive correspondence in connection with the review: court book, pages 45,46.
e)The RRT wrote to the advisor inviting a response to the propositions that the application appeared to be late, and that the RRT had no power to consider late applications[15]: court book, page 50.
[15] pursuant to s.424A.
f)The RRT did not receive a submission on the point[16]: court book, page 53.
g)The RRT conscientiously examined the relevant provisions and correctly found that the application had been lodged outside the 28 day prescribed period: court book, pages 53-55.
The review application lodged with the RRT had to be made within 28 days of notification of the RRT decision.[17]
As found by the RRT, the date of notification was 25 October 2005.[18]
The application for review was lodged well outside a 28 day period from 25 October 2005 and was therefore not given to the RRT within the prescribed period.
As the application was not made within the prescribed period, the RRT correctly found that it did not have jurisdiction to deal with the application.[19]
[16] and proceeded to make decision as per s.424C.
[17] pursuant to s.412.
[18] pursuant to ss.494B(4) and 494C(4).
[19] See Fernando v Minister for Immigration [2000] FCA 324; (2000) 97 FCR 407.
Conclusion
The application has no possibility of success either from an assessment of the grounds of the application or from an independent assessment of the RRT decision.
The application made to the RRT was not made within the time prescribed and the RRT was clearly correct in finding that it lacked jurisdiction to deal with that review application.
I dismiss the judicial review application as amended as disclosing no reasonable cause of action.
The application having been summarily dismissed, costs should follow the event. The Minister seeks 75 per cent of her solicitor and client costs which are quantified in the sum of $4,000. This matter is indistinguishable from the matter of Silia v Minister for Immigration & Anor [2005] FMCA 1723 which I decided earlier this morning. In that case I awarded costs in the sum of $3,500. I will make the same order in this matter.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 November 2005
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