SZGUX v Minister for Immigration
[2006] FMCA 1638
•24 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1638 |
| MIGRATION – Visa – Bridging visa – Migration Review Tribunal – review of MRT decision not to grant Bridging visa – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359A, 359C Migration Regulations 1994 (Cth) |
| SZEWV v Minister for Immigration and Multicultural Affairs [2005] FMCA 1525 SZEWV v Minister for Immigration and Multicultural Affairs [2006] FCA 234 |
| Applicant: | SZGUX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1943 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 October 2006 |
| Date of last submission: | 24 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1943 of 2005
| SZGUX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal made on 29th June 2005. The Tribunal affirmed the decision of a Delegate of the Minister, finding that the Applicant was not entitled to the grant of a Bridging A (Class WA) visa.
Background
The Applicant is a national of India, who applied for a Bridging A (Class WA) visa on 23rd November 2004. A Delegate of the Minister refused to grant that visa on that same day. The Applicant then lodged and application for review of that decision with the Migration Review Tribunal on 13th December 2004.
The Tribunal wrote to the Applicant on 22nd March 2005 under the provisions of s.359A of the Migration Act inviting him to provide comments on information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review, namely that the application for review was lodged with the Tribunal outside statutory time limits, i.e. lodged with the Refugee Review Tribunal outside statutory time limits. The Tribunal said that it received no response from the Applicant and proceeded to make a decision on the review under the provisions of s.359C of the Migration Act.
The Applicant filed an application in this Court for review of the decision on 22nd July 2005. He filed an amended application on
17th November 2005 on the ground that the Tribunal had erred in law and in fact in dismissing the matter. He sets out particulars of those grounds as follows. I will number them rather than deal with them by way of letters, as the letters on the application are somewhat confusing:
a)The crux of the matter is if the Applicant had filed the review to the Refugee Review Tribunal within time.
b)The Applicant has been denied the principles of natural justice for no fault of him.
c)The Tribunal having taken so much of time and energy could have dealt with the matter on merits instead of trying to dismiss the matter on technical grounds.
d)The appellant has filed a protection visa and not good in Court procedures. But as far as he knows he lodged one application in time and as he came to know from the Tribunal that it had not received any papers, he sent another one.
e)The Tribunal completed neglected to see the real facts stated by the appellant before the Tribunal.
f)In any event, the Tribunal had not heard the matter on merits. The Federal Magistrates Court has to direct the Tribunal to hear the matter on merits.
The First Respondent Minister relies on a written outline of submissions prepared by Mr Lloyd of Counsel and filed on
17th October 2006. The Minister also relies on an affidavit of
Ben Cramer affirmed that same day and filed on 18th October 2006. Mr Cramer's affidavit annexes a bundle of documents containing a copy of a decision of the delegate of the First Respondent Minister made on 6th February 2004, a copy of the decision of the Refugee Review Tribunal handed down on 30th June 2004 and previous applications and appeals brought by the Applicant in relation to a decision of the Refugee Review Tribunal and judgments and orders in relation to it, together with the bundle. I have read through that affidavit.
The background to the matter is clearly and comprehensively set out in the First Respondent's outline of submissions. In particular in paragraphs 2 through to 10 of that document. I adopt those paragraphs and will read them on to the record.
On 4 December 2003, the applicant lodged an application for a protection visa. That application also constituted an application for a Bridging visa. The applicant was granted a Bridging Visa Class WA with permission to work.
By letter dated 6 February 2004 the applicant was notified that his protection visa application was refused. The same letter indicated that he had 28 days within which to apply for review of the decision. His Bridging visa would expire at the end of that 28 day period unless within that time he lodged a valid review application in which case it would last until 28 days after the Tribunal's decision.
The Applicant lodged an application for review of the decision in relation to the protection visa application on 15th April 2005, outside the 28 day period. As a consequence, the Tribunal did not have jurisdiction to undertake a review of the Delegate's decision.
The Applicant's challenge to this decision was refused by Lloyd-Jones FM on 28th October 2005 in SZEWV v Minister for Immigration and Multicultural Affairs [2005] FMCA 1525. The Applicant's appeal from that judgment was dismissed by Jacobson J on 8th March 2006 SZEWV v Minister for Immigration and Multicultural Affairs [2006] FCA 234.
The Applicant's application for special leave to the High Court of Australia was dismissed on 5th October 2006. A second consequence of this later application is that the Applicant's Bridging visa expired. On 23rd July 2004 the Applicant applied for a Bridging Visa A.
This application was refused on 26th July 2004. On 23rd November 2004 the Applicant lodged a further application for a Bridging Visa A on the basis of his proceedings in the Federal Magistrates Court concerning the Refugee Review Tribunal's decision. It was refused on the same day.
On 11th December 2004 the Applicant lodged an application to the Migration Review Tribunal to review the Delegate's decision to refuse his bridging visa application. By letter dated 12th April 2005 the Applicant was invited to comment on information. The Applicant did not respond to that information and as a consequence was not entitled to attend here. The Tribunal handed down its decision on 29th June 2005 affirming the decision under review.
Those are the matters that comprise the factual background and the history of this matter.
The Application for judicial review
The Applicant's grounds of review in his amended application are unclear. They were prepared for the Applicant by someone else, as the Applicant does not speak English. At the hearing the Applicant claimed that he was denied natural justice because no kindness was showed to him by the Refugee Review Tribunal or the Federal Magistrates Court or the Federal Court. He said that he was at a disadvantage because he was not fluent in English. He was not able to clarify at what point in his amended application he was referring to the Refugee Review Tribunal and when he was referring to the Migration Review Tribunal. He said that he had replied to the Migration Review Tribunal's letter by handing some documents in at the law courts. He then said that if he had to go back to his home country his life would be in danger and he wished to stay in Australia for some time. He conceded that the proceedings relating to the Refugee Review Tribunal had finished and referred to making another application.
The amended application appears to me to be referring as much to the decision of the Refugee Review Tribunal in finding that his application was out of time, as it does to the Migration Review Tribunal. It was certainly the Applicant's case that he had lodged an application in time to the Refugee Review Tribunal but on finding out that this appeared not to have been received he sought to lodge another application.
That application was found by the Tribunal to be out of time.
The fact is that that issue was fully canvassed in the application before my learned colleague Lloyd Jones FM on 10th October 2005 and his Honour dealt with that issue in his decision delivered on 28th October 2005. The Applicant appealed against that decision and his appeal was heard by Jacobson J and dismissed on 8th March 2006. His Honour dealt with the Applicant's claim that he had lodged an application in time and considered that at paragraph 6 through to 9. His Honour, to my mind, dealt with those issues finally and conclusively. I note that an application for special leave to the High Court of Australia was refused.
The fact is that the proceedings for judicial review of the decision of the Refugee Review Tribunal have been exhausted. The matter has gone all the way to the High Court and the decision of the High Court is not favourable to the Applicant's case. Even if the Applicant had been entitled to a Bridging Visa in relation to his application for a judicial review as those proceedings have been exhausted, the Applicant cannot meet, as Mr Lloyd of Counsel points out, item 010.211(e) of the Regulations. This would mean that the application would be futile, because if I were to remit the application to the Migration Review Tribunal, it would have no option but to refuse it.
In any event, however, it is submitted on behalf of the First Respondent Minister, and correctly in my view, that at the time the Applicant applied for a Bridging Visa on 23rd June 2004 he did not hold either a Bridging A or a Bridging B visa as required by Item 010.211(3)(c) of the Schedule 2 of the Migration Regulations. He was, therefore, incapable of obtaining a Bridging visa. Again, remittal to the Migration Review Tribunal would be futile. There is, therefore, no option but to refuse the application.
The Applicant has shown no jurisdictional error on the part of the Migration Review Tribunal and I am satisfied that there is none.
The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. In my view this is an appropriate matter for costs as the application has no merit. The amount sought is $5,000.00 which is appropriate in the circumstances. I propose to make that order.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 November 2006
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