SZJLT v Minister for Immigration
[2007] FMCA 407
•13 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJLT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 407 |
| MIGRATION – Refugee – application out of time – review of delegate’s decision – review of Refugee Review Tribunal’s decision. |
| Migration Act 1958, ss.5, 36(2), 474(2), 476, 476(2), 477(1), 477(2) |
| SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065 SZCGM v Minister for Immigration [2006] FMCA 1574 |
| Applicant: | SZJLT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2730 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 March 2007 |
| Date of Last Submission: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms. A. Nesbitt |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The Migration Review Tribunal be removed as a party.
The application of 3 October 2006 is dismissed as incompetent.
The applicant pay the first respondent’s costs set in the amount of $1,800.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2730 of 2006
| SZJLT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised)
I have before me an application filed in this Court on 3 October 2006. The application states that it seeks review of a “decision” pursuant to s.476 of the Migration Act 1958 (“the Act”). Unfortunately, this application form does not identify any such decision.
The application form used for this purpose contains a number of prompts by way of headings and questions to enable the applicant to convey basic details to the Court about the application. This applicant has chosen a certain reticence in providing such detail. No reference is made in the appropriate part of the form as to which decision the applicant seeks to bring before the Court.
At the beginning of the hearing, the Court also had before it:
a)For the applicant:
i)
The applicant’s affidavit of 3 October 2006, which identifies the applicant but asserts nothing. Attached is a decision of the Refugee Review Tribunal (“the Tribunal”) said to have been “made” on 29 October 2002 and handed down on
2 November 2002.
ii)The affidavit of the applicant also made on 3 October 2006 which, in part, asserts matters which plainly seek impermissible merits review. For the other part however, the affidavit asserts “error of law” on the part of the Tribunal. Possibly, the affidavit also asserts errors in the (presumably) delegate’s decision which the Tribunal affirmed.
iii)The applicant’s affidavit also of 3 October 2006, which asserts,
“I went to High Court my Migration agent hasn’t told me about Federal Court that’s why I am lodging the application late.”
b)For the respondent:
i)A response filed on 31 October 2006 which amongst other matters asserts that the Court has no jurisdiction to hear this matter pursuant to s.477(1) of the Act, as the Tribunal decision was handed down on 21 November 2002.
ii)The affidavit of Andrea Jane Nesbitt, a solicitor in the employ of the respondent’s solicitors of 8 November 2006 with annexures.
iii)At Annexure “A” to the affidavit is a relevant chronology setting out the applicant’s numerous attempts in the Courts to obtain judicial review of the Tribunal’s decision. The Chronology states:
“ CHRONOLOGY
| DIMA | |
| Applicant arrived in Australia | 4 December 1999 |
| Application for protection visa lodged | 17 January 2000 |
| Delegate’s decision | 5 May 2000 |
| RRT | |
| Application for review lodged | 26 May 2000 |
| RRT Hearing | 29 October 2002 |
| RRT decision handed down | 21 November 2002 |
| HIGH COURT – S505 of 2003 | |
| Draft order nisi lodged | 17 September 2003 |
| Orders of Heydon J remitting matter to Federal Court | 16 February 2004 |
| FEDERAL COURT – N589 of 2004 | |
| Branson J refused order nisi application | 4 November 2004 |
| FULL COURT OF THE FEDERAL COURT – NSD1726 of 2004 | |
| Application for leave to appeal and extension of time filed | 23 November 2004 |
| Jacobson J dismissed application for leave to appeal with costs | 22 December 2004 |
| HIGH COURT – S35 of 2005 | |
| Application for special leave to appeal filed | 20 January 2005 |
| Applicant’s written case and draft notice of appeal filed | 16 February 2005 |
| Hayne & Callinan JJ dismissed application for special leave to appeal | 17 November 2005 |
| FEDERAL MAGISTRATES COURT - SYG293/2006 | |
| Application for judicial review lodged | 30 January 2006 |
| First respondent’s summary dismissal application filed | 30 March 2006 |
| Barnes FM dismissed application as abuse of process and incompetent because no jurisdiction to review delegate’s decision | 6 July 2006 |
| FEDERAL MAGISTRATES COURT – SYG 2730 of 2006 | |
| Application for judicial review filed | 3 October 2006 |
| Directions hearing | 9 November 2006 |
”
At the hearing today the applicant appeared and was assisted by an interpreter in the Punjabi language. Ms. A. Nesbitt appeared for the respondent. The applicant confirmed the matters outlined in the chronology in the annexures to the affidavit of Ms. Nesbitt. He confirmed he was seeking review of the Tribunal’s decision. It was unclear as to whether he also sought review of the delegate’s decision that preceded it.
I explained to the applicant the issue of the Court’s jurisdiction as well as the implications of s.477 of the Act. The applicant confirmed that he had received notice of both the delegate’s decision and the Tribunal decision at “some time in the year 2002”. In response to the issue of jurisdiction, the applicant’s submissions centred around his claim that he had a friend who was “deported back home” and then murdered, and that his family “has got a lot of problems there”. The applicant concluded his submissions by stating:
“I just ask the Court that my case should be remitted back to the RRT so that I have another opportunity.”
There was nothing relevant provided by way of submission which addressed the issue of the jurisdiction of the Court.
Section 477 of the Act, which became operational on 1 December 2005, provides for time limits set on applications made to this Court:
“Time limits on applications to the Federal Magistrates Court
(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.”
Irrespective of any actual notice, Schedule 1 clause 42(a) to the Migration Litigation Reform Act 2005 (“the Reform Act”), provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the MigrationAct 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b) section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
In his originating application the applicant does not specify when he received notification of the Tribunal’s decision. The applicant’s application to the High Court for an order nisi in relation to the same decision was filed on 17 September 2003. I am satisfied by the (unchallenged) evidence in Ms. Nesbitt’s affidavit, that the Minister has satisfied the burden of showing that the applicant had actual notice of the Tribunal’s decision prior to 1 December 2005.
It is clear that the Tribunal’s decision was made and notified to the applicant prior to 1 December 2005. Before me today, the applicant also confirmed that he had received notification of the Tribunal’s decision (and, for that matter, the delegate’s decision) at some stage in 2002. As the application to this Court was filed after 1 December 2005, the provisions of s.477 of the Act apply.
Section 477 provides that for a remedy to be granted pursuant to s.476 of the Act, in relation to a migration decision, the application must be made within 28 days of the actual notification of the decision. The Tribunal’s decision was made and notified to the applicant prior to 1 December 2005. The Court therefore, does not have jurisdiction to hear the applicant’s complaint against the Tribunal’s decision.
Further, s.477(2) provides that the Court may extend that 28 day period by up to a further 56 days if an application for that order is made within 84 days of the actual notification of decision, and further if the Court is satisfied that it is in the interests of the administration of justice to do so. In this case the applicant filed his application on 3 October 2006, well outside the 84 day period set out in s.477(2). To the extent that the applicant asserts that he was late in making this application, the Court could only have considered an application for an extension of time if it was made within this period. The Court does not have discretion to extend time beyond this period.
The delegate’s decision
To the extent that the applicant may also be seeking review of the delegate’s decision, similar reasoning applies. That decision was made on 5 May 2000 (see Annexure “A” to the affidavit of Ms. Nesbitt). The applicant sought review of that decision by the Tribunal on 26 May 2000. To have done so the applicant clearly had actual notice of the delegate’s decision. This was well before 1 December 2005. The application now (if indeed the applicant is also seeking review of the delegate’s decision) was made well after the time limits pursuant to ss.477(1) and (2) of the Act. The Court does not have jurisdiction to hear this matter either.
This Court’s lack of jurisdiction to review the decision of the delegate is also, and separately, derived with reference to s.476(2) of the Act, which relevantly states:
“Jurisdiction of the Federal Magistrate’s Court
…
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision
…”
Section 476(4) relevantly states:
“(4) In this section:
“primary decision” means a privative clause decision or a purported privative clause decision:
(a) that is reviewable under Part 5 or 7 of section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
The delegate’s decision is a “primary decision” falling within the definition set out in s.476(4)(a) of the Act. This decision was reviewable under Part 7 of the Act, and in fact was reviewed by the Tribunal. Pusuant to s.476(2)(a) of the the Act, this Court has no jurisdiction to review the delegate’s decision.
I note specifically, for the applicant’s benefit that even if I had found that I did have jurisdiction to hear this matter, on what was before me I would have dismissed the application in relation to the delegate’s decision. I note that the delegate’s decision has previously been subject to merits review before the Tribunal, and judicial review before this Court and the Federal Court, and the applicant has had leave refused by the Full Court of the Federal Court, and by the High Court on two occasions. There is ample authority which suggests that where a delegate’s decision has previously been reviewed on its merits, any jurisdictional error in the decision ceases to provide a basis for review (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and SZCGM v Minister for Immigration [2006] FMCA 1574 per FM Driver at [6]).
Clearly, given what I have set out above, this Court does not have jurisdiction to review the applicant’s complaints in relation to both the delegate’s decision and the Tribunal’s decision. The application is dismissed on this basis
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 8 May 2007