SZIKF v Minister for Immigration - [2006] FMCA 1162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1162

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for extension of time under s.477 of the Migration Act 1958 (Cth) – operation of the transitional provision of the Migration Litigation Reform Act 2005 (Cth) – application granted – Tribunal decision subject to jurisdictional error.

Commonwealth of Australia Constitution Act 1900 (Imp), s.75
Federal Court Rules (Cth), O.11, r.10
Federal Magistrates Court Rules 2001 (Cth), rr.4.03, 4.04(2), 13.10, 16.05(2), 44.05, 44.12(1)(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.48B, 91X, 422B, 424A, 476, 477, 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1, cl.42

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306
Cameron v Cole (1994) 68 CLR 571
Hoskins v Vane Den-Braak (1998) 43 NSWLR 290
Kosi v Minister for Immigration [2003] FMCA 340
M162 of 2002 v Minister for Immigration [2003] FCA 1146
Minister for Immigration v NAMW [2004] FCAFC 264
NALE v Minister for Immigration [2003] FMCA 366
NAJT v Minister for Immigration [2005] FCAFC 134
NAYF v Minister for Immigration [2004] FCA 196
NBAJ v Minister for Immigration [2005] FMCA 1668
QAAC v Refugee Review Tribunal [2005] FCAFC 92
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone
Theatres (Aust.) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration (2005) 215 ALR 162
Samson v Minister for Immigration [2001] FCA 837
SZAMM v Minister for Immigration [2003] FMCA 377
SZAWW v Minister for Immigration [2003] FMCA 479
SZAZN v Minister for Immigration [2006] FMCA 871
SZBCE v Minister for Immigration [2005] FCA 697
SZBQV & Ors v Minister for Immigration [2006] FMCA 157
SZCXD v Minister for Immigration [2004] FCA 1650
SZEEU v Minister for Immigration [2006] FCAFC 2
SZEKZ v Minister for Immigration [2004] FMCA 975
SZEKZ v Minister for Immigration [2005] FCA 117
SZIBM v Minister for Immigration [2006] FMCA 724
SZICV v Minister for Immigration [2006] FMCA 1063
Taylor v Taylor (1979) 143 CLR 1
VAAC v Minister for Immigration (2003) 129 FCR 168
WAJW v Minister for Immigration [2004] FCAFC 330
Walton v Gardiner (1993) 177 CLR 378

Applicant:

SZIKF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG575 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

28 July 2006

Delivered at:

Sydney

Delivered on:

24 October 2006

REPRESENTATION

Counsel for the Applicant:

Ms B Nolan

Advocate for the Respondents:

Ms C Gray

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 14 November 2003.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, including any reserved costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG575 of 2006

SZIKF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 14 November 2003 and handed down on 9 December 2003, affirming a decision of the delegate of the first respondent made on 18 October 2002, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIKF”.
The application filed on 22 February 2006 was filed under r.44.05 of the Federal Magistrates Court Rules2001 (Cth) (“the Rules”). It seeks an order that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of the Tribunal decision.

The matter was returnable for first directions on 22 March 2006, when it was ordered that the final hearing would follow a hearing of an interlocutory application, being the grounds raised in the response of 20 March 2006.
In respect of this application, the following affidavits were filed:
a)Affidavit of the applicant, affirmed on 22 February 2006 (“affidavit of the applicant”). Attached to the affidavit are a number of exhibits in relation to the migration agent, Mr David Deng.
b)Affidavit of Catherine Jane Gray, sworn on 21 March 2006 (“affidavit of Ms Gray”).

Background

The Tribunal decision of Mr Roger Gibson, reference N02/44856, contains the following background information. The applicant claims to be a citizen of the People’s Republic of China (“the PRC”).

He claims to have arrived in Australia on 10 August 2002 travelling on a passport in his own name. On 29 August 2002, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 18 October 2002, a delegate of the Minister refused to grant a protection visa and on 11 November 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 68)
The applicant claims to have been the general secretary of the Communist Youth League at his factory workplace in the late 1980s where he was actively involved in organising pro-democracy meetings and the student movement. In June 1989, because of his political activities, he was demoted to a lessor position in the factory.

He continued his political activism and protests and organised a strike over working conditions. This resulted in him being arrested and detained for 15 days, interrogated and tortured. He claims that he lost his job at the factory and survived on money given to him by his family and friends.(CB 71-72)
The applicant claims he was again arrested, detained and tortured for one month because he organised a petition in November 2001 against the government for lack of provision of heating for workers.

His family procured his release by bribing a senior government official. Through the help of friends he obtained a visa and bribed local government officials to secure his exit through the airport. He claims he fears returning to China as he will be killed and the lives of his family who help him will be in danger.(CB 72-73)

Tribunal’s Findings and Reasons

The Tribunal decision states:
I accept that the applicant is a Chinese national…Although I have some doubts as to the claimed identity of the applicant…I accept that the applicant is who he says he is. While I accept some aspects of the applicant’s evidence, I am of the view that most other aspects of his evidence were vague, generalised, lacked specific detail, was internally inconsistent, and inconsistent with the independent information before me. I am of the view that the applicant fabricated his claims to bring himself within the definition of a refugee. I did not find the applicant to be a creditable or reliable witness.(CB 81)
The Tribunal then made the following findings:
a)The applicant gave inconsistent and contradictory information about his education, employment, residence and marriage.(CB 81)
b)The Tribunal was unable to accept the applicant’s evidence of his involvement in the pro-democracy movement and activities in June 1989 or adverse consequences he claims that he suffered as a result having any credibility or veracity. Notwithstanding that he claimed to have been a leader of the local factory communist youth league and of student protests in June 1989, the Tribunal found that he was unable to provide details of how, when, where, why or what pro-democracy political activities he organised, in anything other than generalised and vague terms.(CB 82)
c)The Tribunal was unable to accept that the applicant’s evidence of organising a workers movement in his factory to protest the wages in 1994 was credible of any veracity or plausible.(CB 82)
d)
The Tribunal was unable to accept that the applicant’s evidence of his organisation, leadership or participation in a protest in 2001 concerning heating in Fushan had any credibility or veracity.

It was unable to accept that the applicant was involved in organizing, leading and participating in a protest as claimed, or that he suffered adverse consequences of detention and mistreatment by the authorities.(CB 83)
e)The Tribunal found that the evidence before it suggested that the applicant was of no adverse interest to the Chinese authorities when he left China in August 2002.(CB 84)
This led to the Tribunal to its ultimate conclusion:
…I am not satisfied that the applicant has suffered persecution because of his pro-democracy political activities, organisation of workers movements or leadership of protests over heating in China or that he faces a real chance of suffering persecution because of his political activities if he returns there. Accordingly, I am not satisfied that the applicant has a well founded fear of persecution for his political opinion or for any other Convention reason in China, or that he has a well founded fear of persecution in the foreseeable future if he returns to China for his political opinion or for any other Convention reason.(CB 84)

Application for review of the Tribunal’s decision

On 22 February 2006, the applicant filed an application for review under s.39B of the Judiciary Act. On 1 May 2006, the applicant filed an amended application containing the following grounds:
1.Part of the reason the Refugee Review Tribunal dismissed the applicant’s claims was because of inconsistencies between information provided by the applicant in his protection visa application and information he gave to the Tribunal: see paragraphs 58 to 61 of Tribunal’s decision. The Tribunal failed to put these matters to the applicant in accordance in accordance with s 424A of the Migration Act. As a result, there was non-compliance with s 424A and jurisdictional error.
2.The Tribunal relied on the following country information adverse to the applicant’s case without putting the information to the applicant for comment:
(a) country information “concerning the treatment of pro democracy activists” (paragraphs 52-53 and 60 of Tribunal’s decision); and
(b) country information concerning “exit procedures from the PRC” (see paragraphs 49-51 and 66 of Tribunal’s decision). In the circumstances, there was a denial of procedural fairness.

Response

On 20 March 2006, the respondents’ solicitors filed a response indicating reliance upon the following grounds and particulars in defence of the application:
1.The application does not establish any jurisdictional error in the decision of the Refugee Review Tribunal handed down on 9 December 2003.
2.The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.
3.The application for review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
4.There have been other judicial review proceedings in relation to the decision that is the subject of the current proceedings. Accordingly:
a) Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.
5.The application for judicial review does not provide any particulars or any legal ground of review.

Submissions

Ms Gray, appearing for the respondents, indicated in her written submissions that since the filing of the applicant’s amended application, the respondents no longer pressed the first, third and fifth grounds of the response. Further, she conceded that the first ground of the amended application can be made out for the reasons contained in SZEEU v Minister for Immigration [2006] FCAFC 2. The second ground of the amended application cannot succeed as the Tribunal did not have to put country information to the applicant for comment.

The respondent’s submissions state that “s.422B of the Act applies to this matter as an exhaustive statement of the natural justice hearing rule and the country information fell within s.424A(3) of the Act”: Minister for Immigration v NAMW [2004] FCAFC 264 at [138]; QAAC v Refugee Review Tribunal [2005] FCAFC 92; WAJW v Minister for Immigration [2004] FCAFC 330 at [44] – [46]; SZBCE v Minister for Immigration [2005] FCA 697 at [27].
Ms Gray submits that the respondents continue to rely upon the second and fourth grounds of the response and contends that this matter should not proceed to final hearing for the following reasons:
a)It is not in the interests of justice to extend the time limit pursuant to s.477(1) of the Act, as the applicant has already sought judicial review of the same Tribunal decision;
b)The application should be dismissed as an exercise of the Court’s discretion because of the applicant’s unexplained and unwarranted delay in bringing the application; and
c)There have been other judicial review proceedings in relation to the decision that is the subject of the current proceedings and, pursuant to r.13.10(c) of the Rules, the proceedings are an abuse of process.
In the alternative, Ms Gray submits that if the matter is permitted to proceed to final hearing, then the respondents contend that discretionary relief ought not be granted to the applicant because of the his unwarranted and unexplained delay in commencing these proceedings. It is well established that delay is a ground upon which relief in the form of constitutional writs can be refused: SAAP v Minister for Immigration (2005) 215 ALR 162 at [84] per McHugh J; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389.
Ms Nolan, appearing for the applicant, relied on written submissions prepared by Mr Zipser which identifies the following issues as arising in these proceedings:
a)Section 424A issue. Part of the reason for the Tribunal’s dismissal of the applicant’s claims was because of inconsistencies between information provided by the applicant in his protection visa application and information he gave to the Tribunal: Tribunal decision at [58] - [61]. The Tribunal failed to put these matters to the applicant in accordance with s.424A of the Act, which resulted in the non-compliance with that provision and a jurisdictional error.
b)Country information issue. The Tribunal relied on country information adverse to the applicant’s case without putting the information to the applicant for comment.
c)Extension of time issue. The applicant should be granted an extension of time under s.477 of the Act.
d)Delay issue. If there is jurisdictional error in the Tribunal decision, whether the application should still be dismissed in an exercise of the Court’s discretion because of the applicant’s unexplained and unwarranted delay in bringing the application.
e)Abuse of process issue. Whether the proceedings are an abuse of process.
In respect of the extension of time issue, Ms Gray submits that pursuant to the transitional provision in cl.42 of the Migration Litigation Reform Act 2005 (Cth), an applicant is taken to have received actual notification of the Tribunal decision on 1 December 2005 when the proceedings are filed on or after the commencement date. In relation to a migration decision made before 1 December 2005, actual notification of the decision is before that date. The current application was filed on 22 February 2006, 83 days after 1 December 2005. It was therefore filed outside the 28 days set in s.477(1) of the Act. The Court may extend the 28 day period to up to 56 days if the application was made within 84 days of the actual notification and the Court “is satisfied that it is in the interests of the administration of justice to do so.” Ms Gray submits that it is not in the interests of justice to extend the time limit due to the applicant’s unwarranted delay in filing the application. Nor has the applicant provided a sufficient reason to explain the 83 day delay. Such delay is a relevant consideration in determining whether to extend time under s.477 of the Act: SZAZN v Minister for Immigration [2006] FMCA 871 at [18] per Emmett FM.
Ms Gray submits that the applicant stated in his affidavit that he was originally advised by a solicitor in January 2006 that he could not recommence his proceedings, but later received contrary advice.

The details are vague and ultimately inadequate. Notwithstanding, the applicant has not provided any explanation for his delay from December 2005 to January 2006, which was when he claims he received the erroneous legal advice.
Ms Gray submits that this matter has a long history which is relevant to the present application and provided the Court with the following chronology:
a)Applicant born in the PRC on 15 December 1963;
b)Applicant arrived in Australia on 10 August 2002;
c)Application for protection visa lodged on 29 August 2002;
d)Delegate’s decision on 18 October 2002;
e)Application for review lodged on 11 November 2002;
f)Refugee Review Tribunal hearing on 18 November 2002;
g)Refugee Review Tribunal decision handed down on 9 December 2003;
h)Application for judicial review lodged in the Federal Magistrates Court on 17 December 2003;
i)Court book filed and served on 18 May 2004;
j)Directions hearing on 20 May 2004;
k)
Second directions hearing and orders of Registrar Hedge on

3 June 2004;
l)Application for judicial review lodged in the Federal Magistrates Court on 22 February 2006;
m)Scheduled directions hearing on 22 March 2006;
The key elements relevant to the current application are:
a)On 17 December 2003, the applicant filed an application for judicial review in the Federal Magistrates Court to review the same decision that is the subject of this review.
b)On 20 May 2004, there was no appearance by the applicant at the directions hearing and the matter was adjourned.
c)On 21 May 2004, a letter was sent to the applicant to the address for service given in the application for judicial review advising the matter was listed for further directions on 3 June 2004 at 2.15pm.
d)On 3 June 2004, Registrar Hedge made orders dismissing the application with costs as there was no appearance by the applicant.
e)On 4 June 2004, a letter was sent to the applicant advising him of his rights under r.16.05(2) of the Rules and inviting him to act immediately if he intended to have the orders for dismissal set aside.
f)No application was made to the Court.
Ms Gray submits that balancing on one hand, the consequences to the applicant if an order granting an extension of time is not made, against the interests of the community in ensuring finality of litigation on the other, the interests of justice are properly served by refusing the applicant an extension of time: SZAZN v Minister for Immigration at [21]. The applicant has pursued an extensive history of litigation in relation to the same Tribunal decision: at [18] – [19] above. Ms Gray also submits that he had previously failed to prosecute his case and his present application is an abuse of process. Further, that the application to extend the time limit should be refused.

The applicant’s written submissions prepared by Mr Zipser states:
a)The applicant is deemed to have been notified of the Tribunal decision on 1 December 2005.
b)On 22 February 2006, the applicant made an application to this Court and applied for an extension of time within which to make an application.
c)Accordingly, the applicant requires an extension of time.
In response to Ms Gray’s submissions that “it is not in the interests of justice to extend the time limit due to the applicant’s unwarranted delay in filing the application”, the applicant’s submissions refers the Court to:
i)Rule 4.03 of the Rules:
1.    A respondent to an application may file a response in accordance with the form of response set out in Part 1 of Schedule 2.
2.    A response must be filed and served within 14 days of service of the application to which it relates.
ii)Rule 4.04(2) of the Rules:
2.    A response must precisely and briefly state any orders sought and (if the proceeding is a general federal law proceeding) the basis on which the orders are sought.
It is submitted that the applicant provided a copy of the application to the Department on or shortly after the application in this Court was filed on 22 February 2006. Consequently, the response (filed on

20 March 2006) was not filed and served within 14 days of the service of the application and hence was filed out of time.
Mr Zipser in his written submissions referred the Court to SZICV v Minister for Immigration [2006] FMCA 1063 where Smith FM found that the time limits associated with an extension of time application under s.477 of the Act must be construed strictly. In that matter, the applicant filed an application for judicial review of a Tribunal decision within 84 days of notification of the decision, but overlooked applying for an extension of time. His Honour held that the applicant could not subsequently amend the application in order to apply for an extension of time.
Ms Nolan submits that if the time limits associated with an extension of time application under s.477 of the Act are to be construed strictly, then when an applicant makes such an application and the respondent wishes to oppose it, the respondent must:
a)File a response within the time required by r.4.03 of the Rules; and
b)Indicate in the response that the respondent opposes the extension of time application – either as required by r.4.04(2) of the Rules or O.11, r.10 of the Federal Court Rules (Cth).
Ms Nolan submits that in the present case:
a)The response was filed out of time; and
b)The response raised no opposition to the applicant’s extension of time application under s.477 of the Act. Paragraph 2 of the response states: “The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarranted delay in bringing the application”. This paragraph is directed to the Court’s general discretion to refuse to grant relief: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56].
However, contrary to the respondent’s written submissions, paragraph 2 of the response is not directed to s.477 of the Act. For this reason, the respondent is barred from now opposing the applicant’s extension of time under s.477.
The second argument in the applicant’s submissions is that if the respondent is permitted to amend the response and oppose the applicant’s extension of time application, the respondent’s delay in pleading and raising the point is a matter the Court should take into account in deciding whether or not to grant the extension.
The third argument in the applicant’s submissions is that if the respondent is permitted to amend the response, it is a simple question of whether “it is in the interests of the administration of justice” to extend the time: s.477(2)(b) of the Act. The applicant submits that the discretionary factors relevant to this question are similar to the discretionary factors relevant to whether an applicant should be permitted to raise a new ground on an appeal not raised at the trial: VAAC v Minister for Immigration (2003) 129 FCR 168 (“VAAC”) at [26] - [37]; NAJT v Minister for Immigration [2005] FCAFC 134 at [166] – [175].
In support of this contention specifically, the applicant raises four factors:
a)The “explanation given by the applicant for failing” to lodge his application on time: VAAC at [26]. In the present case, the applicant provided an explanation in his affidavit which he submits is satisfactory. He also took prompt steps to prosecute his case in this Court. However, he was misled by his former migration agent who is now deregistered. The applicant subsequently consulted two sets of solicitors. However, the solicitors, probably over-cautiously, advised that he could not recommence his case in this Court. It is submitted that this was an adequate explanation.
b)The “prospects of success” of the substantive argument on judicial review application: VAAC at [26]. The applicant’s principal argument is that the Tribunal failed to comply with s.424A of the Act, giving rise to jurisdictional error. Ms Gray concedes in her written submissions that there is jurisdictional error on this point in the Tribunal decision.
c)The prejudice to the applicant or “the potentially serious consequences to the applicant if time is not extended”: VAAC at [26]. It is submitted that the prejudice to the applicant is strong as he faces returning to a country where he may be persecuted, if there is jurisdictional error in the Tribunal’s decision.
d)Is there prejudice to the respondent “if the time is not extended”: VAAC at [26]. It is submitted that there is no prejudice.
The fourth argument submitted by the applicant is that his affidavit provides an explanation for the delay in commencing these proceedings. Ms Nolan submits that if the respondent decides not to cross-examine the applicant on his affidavit, this is a strong reason supporting the grant of extension of time. Ms Gray did not seek to cross-examine the applicant.
In respect of the delay issue, Ms Gray submits that if the Court was satisfied that it was in the interests of justice to extend the time under s.477(2) of the Act, the conduct of the applicant warrants refusal of discretionary relief on the ground of unwarrantable delay. The present application was filed over three years after the Tribunal handed down its decision on 9 December 2003, almost 18 months after the orders of Registrar Hedge were made on 3 June 2004 and one year after the applicant alleges he was advised his proceedings in the Federal Magistrates Court were dismissed. Delay, waiver, acquiescence or unclean hands are all relevant matters for the Court to consider when determining whether the conduct of the applicant disentitles him to the relief sought: SAAP v Minister for Immigration at [84] per McHugh J.
Ms Gray submits that, moreover, the Court plainly has power in applications of this kind where it finds that there has been unwarrantable delay, to refuse relief without considering whether there was any jurisdictional error in the Tribunal decision: R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 569 - 570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [498] per McHugh J; SZIBM v Minister for Immigration [2006] FMCA 724. Ms Gray submits that the applicant stated that he received actual notification of the Tribunal decision on 9 December 2003; and in his affidavit he stated that he was aware in January 2005 that he had previously sought judicial review. Relevantly, the applicant commenced his previous application in the Federal Magistrates Court on 17 December 2003, over two years before these proceedings were commenced.
In similar circumstances where the first respondent has conceded that the Tribunal breached s.424A(1) of the Act in light of SAAP v Minister for Immigration and SZEEU v Minister for Immigration, it has been held that relief should be refused on the basis of a three and a half year delay since actual notification: SZIBM v Minister for Immigration at [28] and [56] per Emmett FM.
The applicant’s submissions acknowledge Re Refugee Review Tribunal; Ex parte Aala at [56] where Gaudron and Gummow JJ state that relief may be refused where the applicant for relief “has been guilty of unwarrantable delay”. However, M162 of 2002 v Minister for Immigration [2003] FCA 1146 is a case in which there was a six year delay by the applicant in lodging an application to the Court for judicial review of the Tribunal decision. That applicant explained the delay which Goldberg J accepted and granted an extension of time so that the applicant could proceed with his application.
In respect to the issue of an abuse of process, Ms Gray submits that it is an abuse of process to attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings: SZCXD v Minister for Immigration [2004] FCA 1650 at [11] per Wilcox J; Samson v Minister for Immigration [2001] FCA 837; SZAMM v Minister for Immigration [2003] FMCA 377 per Barnes FM. Ms Gray submits that this is so even in circumstances such as these, where the applicant has raised a new ground of review that may particularise a jurisdictional error. The dismissal of the applicant’s previous proceedings was on an interlocutory basis and, accordingly, res judicata and issue estoppel do not apply. Nevertheless, it is an abuse of process to take advantage of a change in the law to reactivate proceedings which had earlier been abandoned: SZAWW v Minister for Immigration [2003] FMCA 479 at [11]; SZEKZ v Minister for Immigration [2004] FMCA 975 at [11] (affirmed on appeal in SZEKZ v Minister for Immigration [2005] FCA 117).
Ms Gray submits that Wilcox J held in Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306 at [18] - [19] that it was not appropriate to determine a matter by reference to the applicant’s arguments for relief when the applicant sought to invoke the same jurisdiction as in earlier proceedings.(see also Walton v Gardiner (1993) 177 CLR 378 at [392] - [393] per Mason CJ, Deane and Dawson JJ)
It is submitted that the applicant has a history of failing to prosecute his case – he previously failed to attend two directions hearings in this Court. It is therefore open to the Court to draw the inference that the applicant initiated the present proceedings for the collateral purpose of extending his stay in Australia: Kosi v Minister for Immigration [2003] FMCA 340 at [18]; NALE v Minister for Immigration [2003] FMCA 366 at [12]. The applicant stated in his affidavit that he was previously represented by a migration agent, David Deng, who did not inform him until January 2005 about the court dates of 20 May 2004 and 3 June 2004. The applicant did not pursue his matter with Mr Deng until January 2005, which was at least one year after he commenced his prior proceedings in the Federal Magistrates Court. Ms Gray submits that the applicant has not provided any information about what action he might have taken before January 2005 in respect of this matter.

The applicant could have complained about his agent, or request the first respondent to exercise her powers under s.48B of the Act. Moreover, the current application for judicial review was lodged one year after the applicant states he was actually notified that his application was dismissed because of his agent’s actions. As such, the claims about the migration agent are not a sufficient reason to allow the applicant to litigate a fresh matter that has already been disposed of.
Ms Gray referred to the applicant’s affidavit evidence that his delay was due to the legal advice he received, and that:
I did not know that I could appeal again to the Federal Magistrates Court. If I had known this earlier, I would have commenced an appeal earlier.(applicant’s affidavit at [14])
If the applicant wished to, he could have sought to set aside the orders of Registrar Hedge. Ms Gray submits that different Courts have previously set aside their own orders due to the irregular conduct of an adviser: Cameron v Cole (1994) 68 CLR 571; Taylor v Taylor (1979) 143 CLR 1; Hoskins v Vane Den-Braak (1998) 43 NSWLR 290; discussed in NBAJ v Minister for Immigration [2005] FMCA 1668 at [13] per Barnes FM. However, the Court in this matter is not being asked to set aside its own orders, but to hear and determine newly commenced proceedings. The respondents wrote to the applicant at his correct address for service on 4 June 2004, informing him of his right to apply to the Court to vary or set aside the orders, but he failed to take up that opportunity. The fact that the applicant did not have a final hearing in his previous application before the Federal Magistrates Court is no bar to finding that the present proceedings are an abuse of process: SZBQV & Ors v Minister for Immigration [2006] FMCA 157 at [26] per Barnes FM; SZCXD v Minister for Immigration at [11] per Wilcox J.
Ms Gray submits that the applicant obtained legal advice in 2005 and January 2006. He had ample opportunity to bring a legitimate and bona fide claim, and to inform the Court and the respondents of the nature of and evidentiary bases for his claims: NAYF v Minister for Immigration [2004] FCA 196.
The applicant’s submissions state that the circumstances in which an abuse of process can be established are very limited. In the present case, the substantive proceedings are not “foredoomed to failure” because of the admission of the respondents that there is a jurisdictional error in the Tribunal’s decision. Further, the applicant does not seek “to litigate a new case which has already been disposed of by earlier proceedings”.

Conclusion

After considering the oral and written submissions of both parties, I have decided to make final orders under r.44.12(1)(c) of the Rules.

In light of the concessions made by the respondents in respect of the first ground of the application, the outstanding issue for me to decide is whether the applicant should be granted an extension of time as sought in his application and supporting affidavit.
The Court’s current jurisdiction under s.476 of the Act was introduced by the Migration Litigation Reform Act, which repealed the Court’s previous jurisdiction under s.483A. Requirements as to the timing of making an application are found in the new s.477. In addition, Sch.1, cl.42 of the Migration Litigation Reform Act applied a time limit to applications relating to decisions made before its commencement.

It allowed a period of grace after 1 December 2005 in which applications could be brought. The effect of cl.42 on s.477 is that an application in relation to a Tribunal decision published before

1 December 2005 is incompetent if it is filed in the Court on or after Friday 24 February 2006, even if it is accompanied by an extension of time application. The Court must be satisfied that actual (as opposed to deemed) notice occurred prior to 1 December 2005.
When actual notice did occur prior to 1 December 2005, an applicant is required to apply for an extension of time under s.477(2) of the Act if the application was not lodged before Friday, 30 December 2005.

The initial 28 days for making “an application under s.477(1)”, and the 56-day extension of time for an application made under s.477(2)(a), are mandatory limits upon the Court’s jurisdiction. Under s.476(1), this Court now has the same original jurisdiction in relation to migration decisions as the High Court of Australia under s.75(v) of the Constitution in judicial review matters: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [237], [279]-[281]. A mandatory time limit which cannot be extinguished can be imposed by Parliament on a Federal Court.
Another effect of cl.42 is that proceedings which commence on or after the commencement date of 1 December 2005, in relation to a tribunal decision made before the commencement date, the actual notification of the decision is before the commencement date.

Section 477 of the Act applies as if the actual notification of the decision took place on the commencement date. Consequently, if an applicant was in fact notified of a tribunal decision before 1 December 2005, that applicant is deemed to have been actually notified on

1 December 2005. If they were actually notified after 1 December 2005, then the date of commencement is in fact the actual date of notification.
The date this application was filed was 22 February 2006, which falls within the 84 days permitted under s.477(2) for an extension of time. The application form also applies for an extension of time under s.477 of the Act by the completion of the “yes” box contained in the standard application form.
I accept the submission of the applicant that ss.476 and 477 have been complied with. The only material in support of the extension of time appears in the applicant’s affidavit filed on 22 February 2006. I note the issues raised in that affidavit concerning the applicant’s original migration agent, Mr David Deng, together with his subsequent consultation with two separate legal practitioners, namely Croneous & Company and Michaela Byers. His affidavit’s contents were unchallenged by the respondents. Consequently, I accept its unchallenged content in support of an extension of time.
For the above reasons the application should be allowed and the matter remitted to the Tribunal.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 23 October 2006