SZHJT v Minister for Immigration
[2008] FMCA 82
•30 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHJT & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 82 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – interlocutory dismissal of application – no jurisdiction where the decision under review has previously been found to be a privative clause decision by the Federal Court in a binding decision. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.474, 477 |
| SZCAT v Minister for Immigration [2004] FMCA 598 SZCAT v Minister for Immigration [2004] FCA 1549 SZEKC v Minister for Immigration [2006] FCA 1065 SZFGJ v Minister for Immigration [2005] FMCA 1285 SZHJT & Ors v Minister for Immigration & Anor [2007] FCA 180 |
| First Applicant: | SZHJT |
| Second Applicant: | SZHJU |
| Third Applicant: | SZHJV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3758 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 30 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2008 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms C Chaffey Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
No further application by these applicants to review the decision of the Refugee Review Tribunal handed down on 22 September 2005 be accepted for filing in this Court, except by leave.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3758 of 2007
| SZHJT |
First Applicant
SZHJU
Second Applicant
SZHJV
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 22 September 2005. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, a husband, a wife and a daughter. The judicial review application was filed on 6 December 2007. The Minister filed a response on 8 January 2008. Paragraph 3 of that response notes that the applicants had instituted other judicial review proceedings in relation to the Tribunal decision, the subject of the present application.
The Minister seeks summary dismissal of the application on the basis of res judicata, issue estoppel and the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The Minister seeks summary dismissal under the Federal Magistrates Court Rules on the basis that there is no reasonable prospect of the applicants succeeding and also that the application is frivolous or vexatious or an abuse of process. I have before me an affidavit by the first applicant, annexing a copy of the Tribunal decision. I also have before me an affidavit by Nicola Johnson, filed on 8 January 2008, giving a procedural history of this matter. I adopt paragraphs 4 through to 19 of that affidavit and the annexed chronology:
On 14 September 2001, the applicants lodged an application for a protection (Class XA) visa with Department of Immigration and Citizenship (“DIAC”).
On 24 December 2001, a delegate of the first respondent made a decision refusing to grant the applicant a protection visa.
On 21 January 2002, the applicants lodged an application for review of the decision of the delegate of the first respondent with the Tribunal.
On 3 April 2003, the Tribunal handed down a decision affirming the decision of the delegate of the first respondent.
On 20 May 2003, the applicants filed an application for judicial review in the Federal Magistrates Court of Australia to review the Tribunal decision handed down on 3 April 2003. Those proceedings were numbered SYG1244 of 2003.
On 27 February 2004, the Honourable Federal Magistrate Scarlett dismissed the application with costs.
On 26 July 2004, the applicants filed a notice of appeal in the Federal Court of Australia against the orders and judgment of Federal Magistrate Scarlett dated 27 February 2004. Those proceedings were numbered NSD1145 of 2004.
On 20 December 2004, the Honourable Justice Allsop ordered that the notice of appeal be allowed and the matter remitted to the Tribunal.
On 22 September 2005, the Tribunal handed down a decision affirming the decision of the delegate of the first respondent.
On 18 October 2005, the applicants filed an application for judicial review in the Federal Magistrates Court of Australia to review the Tribunal decision handed down on 22 September 2005. Those proceedings were numbered SYG3011 of 2005.
On 23 August 2006, the Honourable Federal Magistrate Reithmuller dismissed the application with costs.
On 11 September 2006, the applicants filed a notice of appeal in the Federal Court of Australia against the orders and judgment of Federal Magistrate Reithmuller dated 23 August 2006. Those proceedings were numbered NSD1746 of 2006.
On 12 February 2007, the Honourable Justice Downes ordered that the notice of appeal be dismissed with costs.
On 8 March 2007, the applicants filed an application for special leave to appeal in the High Court of Australia seeking leave to appeal against the orders and judgment of Justice Downes dated 12 February 2007. Those proceedings were numbered S70 of 2007.
On 8 November 2007, the Honourable Justices Hayne and Crennan ordered that the application for special leave to appeal be dismissed.
On 6 December 2007, the applicants filed another application for an order to show cause in the Federal Magistrates Court to review the decision of the Tribunal handed down on 22 September 2005. Those proceedings were numbered SYG3758 of 2007.
Chronology
First applicant born in Bangladesh 21 March 1957
Applicants arrived in Australia 16 August 2001
DIMA
Application for protection visa lodged 14 September 2001
Delegate’s decision 24 December 2001
RRT
Application for review lodged 21 January 2002
RRT decision handed down 3 April 2003
FEDERAL MAGISTRATES COURT – SYG1244 OF 2003
Application for judicial review lodged 20 May 2003
Orders and judgment of Scarlett FM dismissing
application 27 February 2004
FEDERAL COURT – NSD1145 OF 2004
Notice of appeal lodged 26 July 2004
Orders and judgment of Allsop J allowing the
appeal 20 December 2004
RRT
RRT hearing 12 April 2005
RRT decision handed down 22 September 2005
Federal Magistrates COURT – SYG3011 of 2005
Application for judicial review lodged 18 October 2005
Orders and judgment of Reithmuller FM
dismissing application 23 August 2006
FEDERAL COURT – NSD1746 OF 2006
Notice of Appeal lodged 11 September 2006
Orders and judgment of Downes J dismissing
appeal 12 February 2007
HIGH COURT – S70 of 2007
Application for special leave to appeal lodged 8 March 2007
Orders of Hayne and Crennan JJ dismissing
application 8 November 2007
FEDERAL MAGISTRATES COURT – SYG3758 OF 2007
Application for judicial review lodged 6 December 2007
When this matter came before me this morning on a first Court date, I alerted the parties to preliminary issues of jurisdiction. I heard argument on those preliminary issues. I put the preliminary view that the Court has no jurisdiction on the basis of the operation of ss.474 and 477 of the Migration Act 1958 (Cth) (“the Migration Act”). Having heard the parties, I confirm those views. I adopt the terms of both s.474 and s.477 for the purposes of this judgment.
Section 474:
(1) 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.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions
Item Provision Subject matter of provision 1 Section 213 Liability for the costs of detention, removal or deportation 2 Section 217 Conveyance of removes 3 Section 218 Conveyance of deportees etc. 4 Section 222 Orders restraining non-citizens from disposing of property 5 Section 223 Valuables of detained non-citizens 6 Section 224 Dealing with seized valuables 7 Section 252 Searches of persons 8 Section 259 Detention of vessels for search 9 Section 260 Detention of vessels/dealing with detained vessels 10 Section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 Section 269 Taking of securities 13 Section 272 Migrant centres 14 Section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 Section 353A Directions by Principal Member 18 Section 354 Constitution of Migration Review Tribunal 19 Section 355 Reconstitution of Migration Review Tribunal 20 Section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 Section 356 Exercise of powers of Migration review Tribunal 22 Section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 Section 421 Constitution of Refugee Review Tribunal 26 Section 422 Reconstitution of Refugee Review Tribunal 27 Section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers
31 Regulation 5.35 Medical treatment of person in detention
(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision .
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3);
(b) a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;
(c) a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444;
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Section 477:
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
As is now well known, a migration decision is not a privative clause decision if it is infected by jurisdictional error. Where this Court has previously reviewed a Tribunal decision and found that it is free from jurisdictional error, that decision is highly persuasive if the Court is subsequently asked to consider the same decision again. Where the Federal Court has found that a Tribunal decision is free from jurisdictional error and the decision is binding on this Court then, in my view, the combined effect of such a decision of the Federal Court and s.474 of the Migration Act is that this Court has no continuing jurisdiction in respect of that Tribunal decision.
In the present case, the Federal Court on 12 February 2007 dismissed an appeal from a decision of this Court in relation to the Tribunal decision[1]. It is apparent from reading the reasons for the Federal Court decision as a whole and, in particular, paragraph 17 of the decision, that the Federal Court found that the Tribunal decision is free from jurisdictional error. At paragraph 17 Downes J said:
The reality of this case is that the appellants are disappointed with the findings of fact made by the Refugee Review Tribunal. However, these findings were not attended by error of law. Accordingly, the appeal must be dismissed and will be dismissed with costs.
[1] SZHJT & Ors v Minister for Immigration & Anor [2007] FCA 180
The decision of the Federal Court, being a decision on appeal from this Court, is binding on me. The Federal Court, having found that the Tribunal decision is free from jurisdictional error, s.474 of the Migration Act, deprives this Court of any continuing jurisdiction in relation to that decision[2]. I so find.
[2] SZCAT v Minister for Immigration [2004] FMCA 598; affirmed on appeal SZCAT v Minister for Immigration [2004] FCA 1549; SZFGJ v Minister for Immigration [2005] FMCA 1285
For completeness I also note that the Court has no jurisdiction because of the operation of s.477 of the Migration Act.
In their application, the applicants assert notification of the Tribunal decision on 22 September 2005. They must have had the Tribunal decision when they applied to this Court for review of it on 18 October 2005. That was more than two years ago. Obviously that is well beyond the period of 84 days within which the Court has been vested by Parliament with power to extend the time for the filing of an application to the Court. Once that period has expired, the Court has no jurisdiction to entertain the application[3].
[3] SZEKC v Minister for Immigration [2006] FCA 1065
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the amount of $1,000. The second applicant claimed impecuniosity, but that is not a reason for the Court to refrain from making a costs order. The second applicant also indicated a desire to pay costs by instalments. That is a matter that she can discuss with the Minister's Department or the Minister's lawyers. I am satisfied that costs of not less than $1,000 have been properly and reasonably incurred in this matter on the Minister's behalf on a party and party basis.
I am also going to deal with the possibility that there may be a further application to this Court in respect of the same Tribunal decision. The Minister asserts that the present application is an abuse of process. I have not dealt with that assertion, however, I have found that the Court lacks jurisdiction in relation to the application. In the circumstances it is appropriate that the Minister should not be troubled by a further application in respect of the same decision without good reason.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 January 2008
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