SZHWA & Ors v Minister for Immigration & Anor
[2006] FMCA 451
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 451 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa. SUMMARY DISMISSAL – Abuse of process. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424 |
| Colgate-Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 |
| First Applicant: | SZHWA |
| Second Applicant: | SZHWB |
| Third Applicant: | SZHWC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3703 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 March 2006 |
| Date of Last Submission: | 17 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The First Applicant is appointed the litigation guardian for the Third Applicant who was born on 24 August 2002.
The application by the Applicants for an adjournment is refused.
The application for judicial review is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $3,250.00.
No further application for judicial review of the decision of the Refugee Review Tribunal signed on 16 November 2005 and handed down on 18 November 2005 be accepted for filing in this Registry by leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3703 of 2005
| SZHWA |
First Applicant
| SZHWB |
Second Applicant
| SZHWC |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 16th November 2005, and a copy was forwarded to the applicants under cover of a letter of
18th November 2005. The decision, which was made by the principal member of the Refugee Review Tribunal, was that the Tribunal did not have jurisdiction in that matter. The applicants seek a review of that decision.
The first matter to be dealt with is the fact that the applicants have sought an adjournment of the proceedings for a period of six weeks.
I indicated that I would provide reasons for my refusal of the adjournment.
The proceedings were commenced in this Court by means of an application filed on 15th December 2005. The first Court date allocated, no doubt due to the delays caused by the Christmas break, was 30th January 2006. On that date I listed the application for final hearing on 2nd March 2006. The applicants applied for assistance by way of legal advice in the Refugee Review Tribunal pilot legal advice scheme.
When the application came before the Court on 2nd March, Baumann FM was satisfied that the applicants had an appointment to see a legal practitioner for advice about their proceedings the following day.
As a result, his Honour made the decision to adjourn the proceedings so that the applicants could obtain that legal advice. He adjourned the proceedings until today and advised the applicants that the first applicant, at least, must be present today to argue the case and that no further adjournment would be likely.
The applicants then sought assistance from the pro bono scheme run by the Law Society of New South Wales. The applicant told the Court that he had first made an application on 8th March but it was necessary for him to make an amended application on 13th March. On that day he made the application and on 16th March the manager, Community Referral Service from the Law Society of New South Wales, sent a faxed message to the Court on behalf of the applicant seeking an adjournment for a period of six weeks to allow the application for pro bono legal representation to be assessed. The solicitor for the respondent opposes the application for adjournment.
I have refused the application for adjournment, and I have directed that the application proceed today. I do so mindful of the fact that my learned colleague Baumann FM adjourned the hearing of the application on 2nd March for the purpose of allowing the applicant to obtain legal advice from the pilot legal advice scheme. I am also mindful of the fact that the applicant was told that the matter would have to proceed on the next occasion. Whilst that is a matter that I see no reason to depart from, I am also mindful of the fact that it is the applicants who are applying for an adjournment of the proceedings.
The applicants, as I said, commenced these proceedings on
15th December 2005. From that date on, the applicants were aware that the matter was going to Court and that it would be advisable to obtain legal advice. The first Court date was not for a period of some six weeks, until 30th January. The matter was listed for hearing approximately five weeks after that on 2nd March.
At all times the applicant was aware that there were forthcoming legal proceedings and that it was incumbent upon him to obtain legal advice. It was unfortunate that the appointment with a legal adviser under the scheme was not available until the day after the hearing, but my learned colleague took that into account and adjourned the proceedings until today.
What the applicant has done in the meantime is make a further application for pro bono legal representation. He is, of course, within his rights to do that. He did not commence to do that until 8th March, in respect of proceedings which he had commenced in December of the previous year. The adjournment that is sought, which seems to me to be for a relatively long time, some six weeks, is only to allow assessment of the applicant's application for representation. It is quite possible that the legal advice scheme may well form the view that the case is not one which warrants the granting of legal representation.
It is quite clear from the letter faxed on 16th March 2006 that in view of the recency of the application to the pro bono legal advice scheme no assessment had been made of the merits of the applicant's claim, and it is not surprising that there was insufficient time to allow that to be made.
It should be made clear that applicants who commence proceedings in this Court and ask the Court for certain orders must be prepared to have their case heard. I accept the fact that the filing of an application is not entirely of the applicants' choosing in that there is a time limit that applies dating from the notification of the Tribunal's decision. Nevertheless, it is the applicants who commence the proceedings, who decide the proceedings are to be commenced, and by the time of filing the application at the Court, the applicant is aware that it is intended that there should be a hearing in Court to determine the applicant's claims.
It must always be in an applicant's mind that he or she may well require legal representation. Applicants cannot continue to adjourn matters after they have commenced them in order that they may pursue every avenue of legal assistance. There is no right to legal representation in civil proceedings before this Court, and there is no right to Court delay. The task of the Federal Magistrates Court is to hear matters brought to it by applicants and to deal with the less complex matters of federal legislation simply and quickly and inexpensively. Constant adjournments or inbuilt delay do not achieve the Court's obligation to deal with cases quickly and simply and inexpensively. In my view, the applicants have had time to obtain legal assistance and a grant of an adjournment of a defended hearing for a second time to obtain legal advice or representation is not warranted. It is for those reasons that I have refused the application for an adjournment.
I proceed now to deal with the substantive application. The application itself is for a review of a decision of the Refugee Review Tribunal that it has no jurisdiction to conduct a further review of a decision of a delegate of the Minister that was made on 29th October 1999.
The Tribunal took the view that there were two reasons why it did not have jurisdiction: firstly, because this application for review was received out of time; and secondly, because the Tribunal had already reviewed the delegate's decision.
The Tribunal wrote to the applicants on 19th September inviting submissions on these issues, and the applicant made a written submission by letter dated 3rd October 2005 in which he disagreed that his application was ineligible. The applicant made the point that the decision of the Tribunal handed down on 2nd April 2002 was incorrect because of an incorrect notification by the Tribunal. The Tribunal considered that submission but proceeded to find that the notification, although incorrect and that the notice did not comply with sub‑s.66(2) (d)(ii) of the Act, but the applicants had lodged an application for review well within the time limit wrongly specified in the notification limit, and the Tribunal accepted the application, conducted the review and handed down its decision on 2nd April 2002.
The Tribunal took the view that the applicant's application for a protection visa was finally determined, as that expression is explained in sub‑s. (5)(9) of the Migration Act. The Tribunal took the view that it has already discharged its functions under the Act to review the delegate's decision and therefore it no longer had jurisdiction in relation to that decision. The Tribunal relied on the decision of Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301.
It is, however, appropriate to look at the litigation history of this matter because the respondent submits that the applicants' application constitutes an abuse of process and that the Court is entitled to draw the inference that the present application has been filed for a collateral purpose, namely extending the period of the applicants stay in Australia.
The litigation history is set out in detail in an affidavit of Nicola Johnson, solicitor, sworn on 27th January 2006 and filed in Court on 30th January 2006. The affidavit shows that the applicants applied for review of the delegate's decision on 29th October 1999 by lodging an application for review on 17th November that year. The Tribunal handed down a decision on 2nd April 2002 affirming the delegate's decision to refuse protection visas. On 24th April 2002 the applicants sought judicial review of that decision in the Federal Court of Australia. On 31st May that year the Federal Court transferred the proceedings to this Court and on 24th July 2002 Driver FM dismissed the application with costs. The proceedings in this Court were commenced by the first and second applicants under the pseudonyms SZDCN and SZDCO. The third applicant in these proceedings had not at that stage been born.
On 14th August 2002 the applicants filed a notice of appeal in the Federal Court of Australia seeking to appeal the decision of the Federal Magistrates Court. On 12th November 2002, Conti J in the Federal Court ordered that the appeal should be dismissed because of the failure of the applicants to appear. On 9th December 2002 the applicants filed an application for special leave to appeal in the High Court of Australia. On 18th July 2003 a deputy registrar of the High Court wrote to the solicitors for the respondent advising that the proceedings had been deemed abandoned under Order 69A r. 13(1) of the High Court rules.
The applicants filed a second application for special leave to appeal on 14th August 2003. On 23rd February 2004 a deputy registrar of the High Court wrote to the solicitors for the respondent advising that those proceedings had been deemed abandoned pursuant to Order 69A r. 13(1) of the High Court rules. On 23rd March 2004 the applicants filed an application for judicial review of the same Refugee Review Tribunal decision; i.e., that one handed down on 2nd April 2002.
That application was filed in this Court, and on 21st June 2004 Driver FM dismissed the application as incompetent and ordered that no further application for review of that decision should be accepted for filing, except by leave of the Court.
On 4th April 2005 the applicants filed an application for leave and extension of time in the Federal Court. That matter was heard by the Honourable Bennett J on 9th May 2005. On that occasion her Honour dismissed the application for leave and dismissed the application for an extension of time. Her Honour ordered that no further application for review of the Refugee Review Tribunal's decision of 2nd April 2002 was to be filed in the Federal Court without leave of the Federal Court. The applicants were ordered to pay the respondent's costs on an indemnity basis.
What then happened was that the first and second applicants and the third applicant lodged a further application for review of the decision of the delegate dated 29th October 1999. The question does not seem to have been examined by the Refugee Review Tribunal, nor did it need to do so in the light of its findings, but it is clear that the third applicant, a child born on 24th August 2002, would in any event have had no standing to seek a review of a decision of a delegate of the Minister made before that child was born. Nevertheless, that child is named as an applicant in these proceedings, and as the child was an applicant before the Refugee Review Tribunal, albeit an applicant with no standing, it is appropriate that he should be considered as an applicant, and in the circumstances I intend to appoint the first applicant, his father, as the child's litigation guardian.
The situation as I see it is that the Tribunal on 16th November 2005 was indeed functus officio. There was nothing for the Tribunal to review because the Tribunal had reviewed the decision of the delegate already, and that finding had been affirmed by the decision of the Federal Magistrates Court. That decision was not overturned on appeal, and the appeal to the Federal Court in 2002 was dismissed for
non-appearance. The application for leave to appeal out of time was dismissed by the Federal Court. The applications for special leave to appeal to the High Court, both of them, were in fact deemed abandoned. Thus the delegate's decision stands unchallenged, and there was indeed nothing for the Tribunal to hear.
As pointed out by the solicitors for the respondent in their outline of submissions, although the legislation does not preclude a further review application being submitted to the Tribunal, the Tribunal had reviewed the delegate's decision and was therefore functus officio.
I am referred to Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.
It is perhaps more accurate to say that the legislation does not specifically preclude a further review application being submitted to the Tribunal, but the very scheme of review contained in the legislation makes a further application invalid. As Mr Carter for the respondent pointed out, the very time limit provided in the legislation would militate against a second review application being considered.
The absurdity of an idea that the Tribunal had grounds to consider a further application for review of the same decision, notwithstanding the time limit, can be revealed by consideration of the circumstances that could arise if such an application were indeed accepted and heard. If a Tribunal considered afresh an application for review of a decision of the delegate, it would in effect be reviewing its own decision. If the Tribunal had the power to review its own decisions, there would be no need for application for judicial review to be made to this Court.
If the Tribunal did not have power to review its own decisions, as indeed it does not, but if the Tribunal were to hear afresh an application for review of a delegate's decision, the absurdity would arise in that two separate decisions reviewing the one delegate's decision could exist, each one seeming to be valid. If the decisions were contradictory to each other, which one would be relied upon? The applicant could prefer one decision, and the respondent could prefer another.
It is the very absurdity of this situation which makes it quite clear that the Tribunal does not have and cannot have a power to conduct a further review application of a delegate's decision unless a court of competent jurisdiction has quashed an earlier decision on review and directed that a review application be conducted afresh. It is quite clear that the application for review of the decision of the Refugee Review Tribunal signed on 16 November and handed down on 18th November is an application of no merit whatsoever. It must be dismissed.
There is an application for costs on an indemnity basis in the sum of $3,250.00. That order is sought against the first and second applicants, who are the adults. The third applicant is a child and has played no separate in these proceedings. It would be inappropriate, in my view, to make a costs order in respect of that child, who did not in any event have ground to challenge the delegate's decision of October 1999.
It is clearly a case where indemnity costs are appropriate.
I note that on 9th May 2005 the Honourable Bennett J made an order for costs on an indemnity basis and made an order that no further application for review of the delegate's decision be accepted for filing in the Federal Court. In my view, it is appropriate to make a similar order for costs on an indemnity basis today, and the decision of the Federal Court in Colgate-Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225 is, to my mind, authority for making indemnity costs in these circumstances. It is clear to me that the application to the Refugee Review Tribunal which formed the subject of this application is in fact a scam. It is an attempt to get around the earlier orders made by Bennett J of the Federal Court by providing a separate decision of the Refugee Review Tribunal purely as a foundation for a spurious application to this Court.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 March 2006
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