SZHAC v Delegate of the Minister for Immigration

[2006] FMCA 854

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAC v DELEGATE OF THE MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 854

MIGRATION – Refugee – application to review the delegate’s decision – notification of that decision – application for summary dismissal – delegate’s decision “cured” – abuse of process of the Court – application dismissed.

Migration Act 1958, ss.66(4), 48, 65

Federal Magistrate Court Rules 2001, r.13.10

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Minister for Immigration and Multicultural and Indigenous AffairsvAhmed [2005] FCAFC 58
NAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 783
Twist v Randwick Municipal Council (1976) 136 CLR 106
Wu v MIEA (1994) 48 FCR 294
SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549

Applicant: SZHAC

First Respondent: DELEGATE OF THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2340 of 2005

Judgment of: Nicholls FM

Hearing date:	28 April 2006
Date of Last Submission:	13 April 2006

Delivered at: Sydney

Delivered on: 28 April 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. Crawley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed on 24 August 2005 be summarily dismissed as an abuse of process and because it fails to disclose a reasonable cause of action.

2. That no further application by the applicant to review the decisions, or review notification of those decisions, of a delegate of the respondent dated 21 March 1997 (file number N96/003441) and 14 February 2002 (file number CLF01/29852) concerning the applicant or the decisions of the Refugee Review Tribunal dated 1 February 1999 (file number N97/14990) and 27 March 2003 (file number N02/41843) concerning the Applicant be accepted for filing except with leave of the Court.

3. The applicant pay the respondent Minister’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2340 of 2005

SZHAC

Applicant

And

DELEGATE OF THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore: revised)

1. The proceedings before me today derive from an application filed in this Court on 25 August 2005, seeking review of the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant who is a national of Bangladesh. The application states on its face that the applicant was notified of the decision of the delegate on 21 March 1997.

2. Before me today I have a Notice of Motion filed by the respondent Minister on 24 October 2005, seeking summary dismissal of the application for judicial review on the grounds that pursuant to Rule 13.10 of the Federal Magistrate Court Rules 2001 no reasonable cause of action or basis for the application is disclosed. Further, or in the alternative, the proceedings are frivolous or vexatious and even further, or in the alternative, the proceedings are an abuse of the process of the Court. In support of her Notice of Motion the respondent relies on the affidavit of Svetlana Zarucki, a solicitor in the employee of the respondent solicitors, sworn 24 October 2005.

3. The applicant's history, as it relates to his pursuit for recognition in Australia as a refugee pursuant to the Refugees Convention, is summarised in a chronology set out at page 1 of the respondent’s outline of submissions filed on 13 April 2006, which reveals:

DATE	EVENT
9 May 1996	Applicant arrives in Australia.
11 July 1996	Application for a protection visa lodged.
21 March 1997	Delegate’s Decision made.
15 April 1997	Application applies for RRT review.
1 February 1998	RRT decision made.
2 March 1999	Applicant applies to the Federal Court for review of the RRT decision.
24 June 1999	The Federal Court dismissed the Application.
7 August 2001	Further application for Protection Visa lodged (“Further PV Application”).
14 February 2002	A delegate of the Minister refuses the Further PV Application.
28 February 2002	Applicant applies for RRT review of the delegate’s decision.
27 March 2003	RRT affirms the delegate’s decision.
2 May 2003	Applicant applies to the Federal Magistrates Court of Australia for review of the RRT decision.
18 June 2004	The Federal Magistrates Court proceedings are dismissed by Driver FM with costs.
7 July 2004	Applicant applies for leave to appeal.
29 September 2004	Application for leave to appeal listed for hearing and dismissed by Jacobson J with costs.
21 October 2004	The Applicant applies for special leave in the High Court.
5 August 2005	The special leave application is dismissed by the High Court.
24 August 2005	The Applicant files the application for judicial review the subject of these proceedings.

1. The application before me now is said to be made pursuant to the Administrative Decisions Judicial Review Act 1977 (“the AD(JR) Act”) and the Judiciary Act 1903 and Migration Act 1958 (“the Act”). This Court does have jurisdiction generally under the AD(JR) Act to review migration decisions. However, this must be seen in the light of what the High Court said in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [97]:

   “It also is to be noted that changes were made by the Amending Act to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Amending Act inserted par (da) in Sched 1 to the ADJR Act. Section 3(1) of the ADJR Act contains a definition of "decision to which this Act applies", which identifies decisions of an administrative character made, proposed to be made or required to be made under certain enactments, but excluding decisions included in any of the classes of decision set out in Sched 1. The par (da) of Sched 1 inserted by the Amending Act specifies:

   ‘a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’

   Questions may arise respecting the construction of the ADJR Act and its application to decisions which are not privative clause decisions and in which jurisdictional error is relied upon...”

   The High Court found that the exclusion of jurisdiction to review privative clause decisions under the AD(JR) Act would not apply in the case of a decision infected with jurisdictional error.

2. The applicant asserts in the originating application to this Court now that he is aggrieved because:

   “1. The decision was not made according to law.

   2.The decision failed to observe the prescribed method of delivering and notifying a decision.

   3.The delegate did not have the power to give that decision to the applicant.

   4.The decision was infected by jurisdictional error and breach of procedural fairness.”

3. The specific grounds of the application to support the orders claimed by the applicant are expressed to be:

   “1.A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.

   2.The delegate who purported to make the decision did not have jurisdiction to give the decision. The Minister does not have a power to take this decision into effect.

   3.The decision was infected by error of law. The decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   4.The application is late. However, the applicant refers to Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 and Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24.

   5.This application is not vexatious nor and abuse of process. A delegate’s decision can be reviewed by the court under certain Circumstances. The Court has previously reviewed decisions be the delegate in the matters of:

   Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292,

   SZCTH v Minister for Immigration (No.1) [2004] FMCA 211

   NAMG v Minister for Immigration (No. 1) [2003] FMCA 541

   Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132.”

4. The respondent filed an outline of submissions on 13 April 2006. The applicant has not filed anything further in relation to his application. He appeared before me today and was unrepresented. He was assisted by an interpreter in the Bengali language. The respondent was represented by Ms. Crawley. In support of the Notice of Motion the respondent relied on the affidavit of Ms. Zarucki and on the written submissions which essentially were:

   1)That the application discloses no reasonable cause of action because even if any jurisdictional errors affected the decision of the delegate it was “cured” by the decision of the Tribunal which has been held not to be invalid.

   2)The delay in raising the present challenge also reveals an abuse of process.

   3)As a general principle the Court should not challenge a primary decision where there is a de novo review decision, because the review decision “cured” the primary decision. In this regard the respondent referred to Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495, Gyles J at [92]-[96]l Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, Minister for Immigration and Multicultural and Indigenous AffairsvAhmed [2005] FCAFC 58 and NAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 783. The respondent also noted that the term “cured” has not been defined, but that “the metaphor has been adopted at the highest judicial levels” and in this regard referred to Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J at 116.

5. Essentially the applicant appears to challenge the delegate’s decision on the following bases:

   1)That the making of the decision was infected by error of law and that a breach of the rules of natural justice occurred in connection with the making of the decision.

   2)That the delegate who purported to make the decision did not have jurisdiction “to give the decision”.

6. The relief now sought by the applicant is:

   “The applicant claims…

   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 the decision is pending.

   5.Costs. And

   6.Any further order that this Honourable Court may deem appropriate.”

7. The respondent Minister essentially relied on her written submissions, although at the hearing Ms. Crawley did further submit, in relation to the applicant’s stated complain about the giving of notice, that s.66(4) of the Act indicated in clear terms that any failure to give notification of a decision does not affect the validity of that decision.

8. For the sake of clarity it should be noted that it was apparent from the affidavit of Ms. Zarucki, and in particular from the exhibit (“SZ1”) referred to in that affidavit, that the applicant had made a second (subsequent) application for a protection visa to the Minister’s Department (which was not the decision the subject of the complaint before me). In relation to this application and the affect of s.48A of the Act (which provides that a person (“non-citizen”) who is refused a protection visa may not make a further application for a protection visa) the “s.48A bar” to making another protection visa application had been “lifted”. Ms. Crawley submitted in relation to the “second” decision of the delegate (which she emphasised was not before me by way of complaint by the applicant) that in relation to the lifting of the bar, a “beneficial reading” had been given to the applicant’s “first” application to the Minister’s Department, in that it was said to contain no grounds, and taken at the highest, amounted to an “invalid” application. As such, a second application was lodged and accepted. In relation to the affect of this, if any, upon my consideration of that first delegate’s decision now, Ms. Crawley submitted that the respondent’s position remained unchanged. Review of the “first” delegate’s decision before this Court was an abuse of process and the question of the validity, or otherwise, of the first delegate’s decision is not the critical question to be determined. I agree with this submission. Whether the applicant benefited from a “beneficial reading” or not, what remains is that he was afforded a second opportunity by the Minister to put forward his refugee claims.

9. The applicant before me was afforded full merits review, by the Tribunal, of the “first” delegate’s decision. This, based on the abovementioned authority (at paragraph 7.3), would have “cured” any alleged defect in that delegate’s decision. Further, that Tribunal decision was the subject of judicial review by the Federal Court, and the applicant’s complaint was dismissed. In any event, the applicant filed a second application for a protection visa, which was also refused and was also subject to a “second” Tribunal merits review of the applicant’s claims. Further, the “second” Tribunal decision was also the subject of unsuccessful judicial review. Ms. Crawley submitted in this regard that, in light of, and in the context of, the second opportunity to apply for protection, this amounts to further support for the proposition that a challenge to the “first” delegate’s decision (before me now) should be viewed in all the circumstances as an abuse of process of this Court. I agree.

10. At the hearing before me I confirmed with the applicant that aside from his application he had not filed any other document with the Court in support of his complaint. I sought an explanation from the applicant of the seemingly internal contradiction within his application, in that, on the face of the application there is an assertion that the decision had been notified to the applicant on 21 March 1997, yet the substance of his complaint is that no notification occurred. In this regard the applicant stated “I have no idea”. Although an interpreter has translated all that Ms. Crawely had submitted (which to the appropriate relevant degree also encompassed the respondent’s written submissions) I sought to provide a specific opportunity for the applicant to respond. I put to the applicant, with reference to the submissions made, the difficulty he faced before the Court today. I explained to the applicant that there was nothing in what he had put before the Court to show any error in the delegate’s decision and in any event, on the state of the law, even if any error could be shown, the delegate’s decision would have been “cured” by the subsequent full merits review conducted by the Tribunal and the making of its decision. I then gave the applicant the opportunity to make any submission in support of his case. The applicant stated that he had a “good lawyer friend”, and that if he was given some more time he could talk to the lawyer and put a “fresh application and fresh ground” forward. When asked why he had not contacted a lawyer earlier, at the very least in August 2005 when this application was filed, the applicant submitted that lawyers “are very expensive”, but that now he could “earn money from overseas”. I took this statement as a late request for an adjournment, which Ms. Crawley opposed. I refused to grant such an adjournment on the basis that the applicant had had more than sufficient time to procure a lawyer if he wished, particularly in light of the long litigation history of this matter. Nor did the applicant provide any details as to the availability of this “lawyer friend” or the “fresh ground” that he would put forward. The applicant put nothing before the Court to show that any real or useful purpose, at this time, would be served in providing this further opportunity to the applicant. I asked the applicant if there was anything further he wished to say, to which he replied “no”.

11. I am of the view that the Minister's arguments that the application before me is an abuse of process should be accepted and the applicant’s application should be determined today. The application seeking relief in relation to this delegate’s decision would in my view be refused at a final hearing because such relief would serve no legal purpose and would be futile. I accept the respondent's submission that even if there were any jurisdictional errors affecting the decision of the delegate (none were put and none were evident on what was before me) it was “cured” by the decision of the Tribunal which has been held not to be invalid.

12. In this regard I note Wilcox J. in Wu v MIEA (1994) 48 FCR 294, at [298]-[299]:

    “The decision is invalid because the decision maker failed to take into account relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision would initially to have been made and who has taken into account relevant matter, the initial defect may reasonably be regarded as “cured”.”

    Further, it is established law that a Tribunal decision will “cure” a delegate’s decision. In Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 the Court said at [92]:

    “The decision in Alvaro (supra) makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.”

    I also note and rely on the subsequent analysis at [93] to [96] inclusive.

13. I also accept that there is further clear authority that the migration Tribunals have the power to review and reconsider even legally invalid decisions, as well as valid decisions, of the Minister’s delegate: See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58.

14. The respondent has also referred me to the Judgement of Smith FM in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 and in particular at [23] and [24]. I have read that Judgement and with respect agree with what is set out at those paragraphs, and note the similar factual circumstances before his Honour in that case with the circumstances before me. In particular I note at [23]:

    “… In my opinion, the structure of decision-making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision-maker.”

1. In the case before me the applicant has had the opportunity to seek a de novo merits review of the delegate’s decision of which he complains. That opportunity was taken up and the subsequent Tribunal decision was the subject of judicial review proceedings which revealed no flaw or error in it. In all these circumstances therefore, it is clear that it would be futile to allow further litigation as to whether the delegate’s decision was lawfully made or given or not. It is clear that the Court would decline to give the relief sought by the applicant as to the validity of the delegate’s decision or the notice of the making of the decision, on the ground that there would be no real purpose in doing so. It is clear therefore that the current application would fail on this ground and to allow the application to continue in all the circumstances set out above would constitute an abuse of the Court’s process.  The applicant’s attempts before the Minister, the Tribunal and the Court have spanned over nine years. He has had the opportunity to seek review of the delegate’s decision of which he now complains. The Federal Court found no error in this subsequent review. He received an opportunity to resubmit his refugee claims before the Minister. The subsequent review in that instance by the Tribunal was the subject of judicial review by this Court, the Federal Court and there was an attempt to put it before the High Court. By any measure, the applicant has had more that a “fair go”. The current proceedings which seek to challenge a decision made over nine years ago, in light of all of the above, should not be permitted to continue any longer. The delegate’s decision on what is before him contains no error. In any event any error would have been “cured” by the subsequent Tribunal decision. The application now (which I note in passing is in terms identical to other application put before the Court in similar circumstances) is for the reasons set out above an abuse of the process of the Court. I dismiss the application and make the orders sought by the respondent Minister.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  29 June 2006