SZGNN v Minister for Immigration

[2006] FMCA 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 267

MIGRATION – Refugee – Tribunal found it did not have jurisdiction to review the decision of the delegate – decision in question had already been reviewed – application for review outside the mandatory time limit – the Minister not allowed the applicant to lodge a further application protection visa under s.48B – no jurisdictional error – application dismissed.

Migration Act 1958, ss.48A, 48B, 412(1)(b), 477(1A)
Migration Regulations 1994, Regulation 4.31

SZGNN v Minister for Immigration [2005] FMCA 1273

Applicant: SZGNN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2814 of 2005

Judgment of: Nicholls FM

Hearing date: 06 February 2006

Date of Last Submission: 31 January 2006

Delivered at: Sydney

Delivered on: 06 February 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. A. Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $2400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2814 of 2005

SZGNN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application filed in this Court on 4 October 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 September 2005. The Tribunal found it did not have jurisdiction to review the decision of a delegate of the respondent Minister made on 8 December 1997 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings. 

2. The applicant is a national of the People's Republic of China who arrived in Australia on 1 March 1997. He is currently held in detention at the Villawood Immigration Detention Centre. From the material before me the relevant history in this matter is:

   1)The applicant applied to the first respondent's Department for a protection visa on 30 June 1997.

   2)On 8 December 1997 a delegate of the first respondent refused to grant a protection visa (see the delegate’s decision record at Court Book (“CB”) 34 to CB 39).

   3)By letter dated 8 December 1997, sent to the applicant by registered post to his home address as provided in the application for a protection visa (CB 15), the applicant was notified of the delegate’s decision (CB 32 to CB 33).

   4)On 9 December 1997 the applicant applied to the Refugee Review Tribunal for review of that decision (CB 40 to CB 43 with attachment from CB 44 to CB 48).

   5)The applicant attended a hearing before the Tribunal (differently constituted) (“the first Tribunal”) on 9 February 1999 (CB 53 to CB 56).

   6)The first Tribunal made its decision on 23 February 1999 and affirmed the decision not to grant a protection visa to the applicant (CB 59 to CB 69).

   7)The applicant was notified of the first Tribunal's decision by letter dated 24 February 1999 sent to the applicant's home address as provided in his application for review (CB 57 to CB 58). While the applicant had indicated in his application for review that he had a migration adviser, the adviser was not appointed as an authorised recipient for correspondence. The address for service was given as the applicant’s home address (CB 41).

   8)The applicant made an application to this Court on 15 June 2005 seeking judicial review of the first Tribunal's decision. The matter came before Federal Magistrate Scarlett who on 18 August 2005 dismissed the application on the basis that the decision was a privative clause decision as there was no jurisdictional error evident, and therefore the application was incompetent, having been filed outside the time specified in s.477(1A) of the Migration Act 1958 (“the Act”) (see SZGNN v Minister for Immigration [2005] FMCA 1273 in matter number SYG1550 of 2005).

   9)On 1 September 2005 the applicant, who at that time gave as his residential address in Australia the Villawood Immigration Detention Centre, again applied for review of the delegate’s decision made on 8 December 1997 (CB 74 to CB 77).

   10)By letter dated 19 September 2005 the Tribunal wrote to the applicant notifying him that it appeared that his application was ineligible for review on the basis that it was not made within 28 calendar days of being his notified of the delegate’s decision and, that in addition, the Tribunal had already reviewed that delegate’s decision, and that that review had been completed on 23 February 1999. The Tribunal advised the applicant that it would consider any information that the applicant wanted to send to it, and decide if it had power to consider his application (CB 80).

   11)The applicant respondent by facsimile to the Tribunal dated 21 September 2005 (CB 81 to CB 82 and the attachment at CB 83).

3. The Tribunal's decision record (in relation to the decision which is the subject of review before me now) is copied at CB 85 to CB 88. In its decision record the Tribunal identified the critical question as being whether it had jurisdiction to review the decision made on 8 December 1997, on the basis of the application for review which was lodged on 1 September 2005 (CB 86.4). It noted that it had formed a preliminary view that it did not have jurisdiction on the basis that the decision in question had already been reviewed and because the second application for review was received outside the prescribed time limit. It noted that it had written to the applicant on 19 September 2005 inviting his submissions on these issues, and that the applicant responded by letter dated 21 September 2005.

4. The Tribunal's “Findings and Reasons” for its decision are at CB 87.5 to CB 88.2. The Tribunal found that:

   1)It considered the application for review lodged on 19 December 1997 to be a valid application.

   2)It had already made a decision on this matter “on 19 December 1997” (this is clearly an error on the part of the Tribunal. The only Tribunal decision made in relation to the delegate’s decision at that time was the decision of the first Tribunal of 23 February 1999). However, in all the circumstances, it is clear that this was the decision that the Tribunal was referring to and that this is not an error such that it would be said to constitute jurisdictional error.

   3)It noted that the Minister (the first respondent) had not allowed the applicant to lodge a further application for a protection visa pursuant to s.48B of the Act and that there had been no subsequent protection visa application or any (other) primary decision.

   4)As the Tribunal had already discharged its functions “under the Act” to review the delegate’s decision, it no longer had jurisdiction in relation to that decision.

   5)There was no suggestion that the first Tribunal's decision involved jurisdictional error. (I note in this regard, although not referred to in the Tribunal's decision record, Federal Magistrate Scarlett had already found that there was no jurisdictional error in the first Tribunal's decision and that the decision of the first Tribunal was a privative clause decision).

   6)In addition the Tribunal found that the application for review (made on 18 February 1997) now before it was received outside the mandatory time limit (for the making of such applications) and further found that the applicant had been notified of the delegate’s decision on or about 12 December 1997. It noted therefore that the applicant should have made any application to the Tribunal “approximately by 9 January 1998”. It found that as the review application currently before it was received by the Tribunal well outside the mandatory time limit it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision.

5. In his application for review filed in this Court on 4 October 2005 the applicant states as the grounds of review:

   “1.My protection visa was refused back in 1997. I’ve been Australia for 8 years. I joined political activities in last few years. I have a new claim. I feared persecution if I back to my country.

   2.I’m already in detention for 4 months. I lodged application in RRT again for my new everdence but RRT refuse to review my application was reviewed before.”

6. The applicant has not put forward any further material in support of his claim. He appeared before me unrepresented and was assisted by an interpreter in the Mandarin language. Ms. Alex appeared for the respondents. At the hearing before me the applicant stated that he had some documents with him that he wanted to show the Court. The applicant claimed that he had sent these documents to the Court and to the respondent. However, the documents had neither been received by the respondent, nor the Court. I adjourned temporarily to allow Ms. Alex to look at the documents. Once the Court resumed Ms. Alex confirmed that the documents were in the nature of written submissions by the applicant outlining the history of his matter and did not object to the Court accepting these submissions. I note that while the heading on this document refers to the Court, the “submissions” are addressed:

   “Dear the Tribunal Member.”

   Nonetheless I am satisfied that this document represents the applicant’s assertions as to why the Tribunal does have jurisdiction now to consider his latest application for review. Further, when I asked the applicant if he had anything additional that he wished to say to the Court, he said:

   “I just hope my case can be sent back to the RRT and looked at again.”

7. After looking at the submissions handed up by the applicant I specifically asked the applicant to further elaborate of what is meant by the statement made at page 3 of his submissions:

   “A different time limit applies if the applicant is in immigration detention on the day of which he and she is notified of the decision.”

   The applicant indicated that the submissions were prepared with the help of a friend, and that as the applicant understood it the issue raised here was that the time limit after notification of the delegate’s decision, which applied to him, is seven days for applicants held in detention. I explained to the applicant that a different time limit does apply to applicants held in detention beginning from the day they are notified of the decision of the delegate. The written submissions recount correctly that the question that arises in the applicant’s case is whether the Tribunal has jurisdiction to review the decision made on 8 December 1997 on the basis of the application for review lodged on 1 September 2005. The submissions then assert that the applicant had “new content” for the application for review and that the “agency that did his case before did not so carefully”. The submissions then assert that the letter of 19 September 2005 (being the letter sent to the applicant after receipt of his second application for review seeking his comments on the Tribunal’s preliminary view that it did not have jurisdiction) invited submissions from him and that his “case was lodged according to the letter”. The submissions then continue with a reference to s.412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994. The submissions state that a different time limit applies if an applicant is in detention on the day of which he is notified of the decision. The claim put forward is that the time limit (28 days) is not applicable to him.

8. At best what can be discerned from this is an assertion that because he now has “new claims” and because he was invited by the Tribunal to make submissions, his application was in effect “lodged according with the letter”. Somehow the time limit (28 days), therefore, “is not applicable to me in my case”.

9. Clearly the letter of 19 September 2005 can in no way be seen as an invitation to the applicant to submit “new claims”. The applicant’s (or friend’s) assertion that the case was lodged “according to the letter” is plainly wrong. The applicant made a second application for review to the Tribunal. The Tribunal invited comment from the applicant, as the submissions themselves state, on the question of whether the Tribunal now had jurisdiction. In these circumstances the issue of “different time” limit is only relevant to whether it is 28 days or 7 working days from the date of notification of the delegate’s decision (“the RRT reviewable decision”). In any event, by 1 September 2005 the applicant was nearly eight years too late. The applicant’s claims now do not put forward any ground to show jurisdictional error on the part of the Tribunal, nor is any such error evident on the material before me. In the circumstances before it, in considering the application for review lodged on 1 September 2005, the Tribunal was clearly required to address the issue of whether it had jurisdiction to review the delegate’s decision made on 8 December 1997. It was open to the Tribunal on the material before it to find that because an earlier Tribunal had already made a decision on this matter previously, and that the respondent Minister had not allowed the lodging of any further application for a protection visa (under s.48B of the Act so as to “lift the bar” contained in s.48A of the Act), that it had already discharged its functions under the Act and no longer had jurisdiction in relation to that decision. Similarly, its finding that the application for review which was now before the Tribunal, at the time of the making of its decision, was received outside the mandatory time limit for the making of such applications was also open to it on the material before it. Its finding that the applicant was notified of the delegate’s decision on or about
   12 December 1997 is amongst other things, confirmed by the applicant himself in the application for review lodged with the Tribunal. At CB 76 in answer to the question:

   “Date of DIMIA letter notifying you of the DIMIA decision on your case:”

   The applicant has responded:

   “8-12-97”

10. Nor is there anything before me to challenge the Tribunal’s finding that the Minister had not allowed the applicant to lodge a further application protection visa under s.48B of the Act. Section 48A of the Act provides that subject to s.48B a non-citizen, while in the migration zone, who has made an application for a protection visa, where the grant of the visa has been refused, may not make a further application for a protection visa while in the migration zone. Section 48B of the Act enables the Minister to determine that s.48A does not apply to a particular non-citizen. There was nothing before the Tribunal to show that the Minister had made any such determination.

11. It is clear that the applicant's real complaint now is that in the intervening 8 years since he first arrived in Australia he has become “politically active” and as he says has a “new claim”. There was nothing before the Tribunal and there is nothing before me now to indicate whether the applicant has indeed sought any determination by the Minister, pursuant to s.48B, to enable any new claims to be considered. It is clear that within the statutory regime which relevantly governs the Tribunal’s jurisdiction, an applicant having “new claims” (or even claims that were “not so carefully” put) does not allow the Tribunal to override the clear limitations of its jurisdiction. Clearly the legislation envisages that the mechanism dealing with “new claims” is to convince the Minister personally that it is in the public interest that the applicant be permitted to lodge a further application for a protection visa while he remains in Australia. The applicant (or his friend on his behalf) may have already pursued this option. But whatever the case here, this complaint does not serve to reveal jurisdictional error on the part of the Tribunal decision currently put before me for review. In my view the Tribunal correctly found that it did not have jurisdiction to determine the application and, as matters stand, there is no further review that the Tribunal can conduct of the delegate’s decision. On this basis the application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 28 February 2006