SZKUO v Minister for Immigration
[2009] FMCA 308
•3 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUO v MINISTER FOR IMMIGRATION | [2009] FMCA 308 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – application for interim relief – whether there is a serious question to be tried. |
| Migration Act 1958 (Cth), ss.5(9), 5(9)(b), 198, 198(2)(c)(ii), 426A, Pt.7 |
| Minister for Immigration v Bhardwaj (2002) 209 CLR 597 SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073 Zubair v Minister for Immigration (2004) 139 FCR 344 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 |
| Applicant: | SZKUO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 631 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 April 2009 |
| Date of Last Submission: | 3 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Mr F. Varress, Fragomen |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 631 of 2009
| SZKUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 17 March 2009 the applicant seeks an interim order that the applicant, who is presently in detention, be released from detention pending final determination of the application.
The application seeks the relief set out in orders sought by the applicant as follows:
“1. The application be granted.
2. A DECLARATION issue to the effect that:
(a) the Applicant’s PV Applicant has not been “finally determined” as defined in s 5(9) of the Act;
(b) the Applicant’s BVA granted on or about 18 October 2000 has not ceased to have effect and remains valid until such time as his PV Application is “finally determined”;
(c) the Applicant is not an unlawful citizen liable for continued Detention under s 196 of the Act;
(d) the Applicant is not an unlawful non-citizen liable to be removed under s 198 of the Act.
3. A writ of the nature of HABEAS CORPUS issue, directed to the Respondent, for the release of the applicant.
4. An INJUNCTION be granted, restraining the Respondent from: (a) removing the Applicant from Australia; and
(b) continuing to detain the Applicant.
5. The Respondent pay the Applicant’s costs.
6. Such further or other order as this Court considers fit.”
In considering whether the order sought by the applicant this afternoon should be made, the first issue for the Court to consider is whether or not there is a serious question to be tried.
The applicant was represented by Mr Reynolds of counsel. Mr Reynolds submitted that there is no operative decision to allow for the removal of the applicant pursuant to s.198 of the Migration Act 1958 (Cth) (“the Act”) because, relevantly, s.198(2)(c)(ii) provides that an officer must remove as soon as reasonably practical an unlawful citizen who has made a valid application for a substantive visa that can be granted when the applicant is in the migration zone that has been finally determined. Section 198(2)(c)(ii) states, “An officer must remove as soon as reasonably practicable an unlawful non‑citizen: who [either], has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.”
Mr Reynolds, counsel for the applicant, concedes that a valid application for a substantive visa was made, however, submits that there has been no final determination of that application that would enable the applicant to be removed pursuant s.198 of the Act. Counsel for the applicant referred the Court to s.5(9) of the Act where it states that:
“5(9) For the purposes of this Act, an application under this Act isfinally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.”
Relevantly, neither the decision made by the Refugee Review Tribunal or the Delegate are any longer subject to any form of review under Part 7. Otherwise, the matter before this Court is not a matter to which the definition in s.5(9)(b) is relevant because a review was lodged within the prescribed time and in accordance with the legislation.
Counsel for the applicant’s submission centres around whether or not the reference to “a decision”, when considering whether or not a matter had been finally determined, includes a purported privative clause decision.
Counsel for the applicant submits that “a decision” does not include a purported privative clause decision and in support of that proposition referred the Court to Minister for Immigration v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”), in particular at [51] where Gaudron and Gummow JJ stated that:
“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
And [153] where Callinan J stated that:
“Once it is recognised that a Court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences.”
In the case before this Court, a decision was made by the Refugee Review Tribunal (“the Tribunal”) in reviewing the decision of the Delegate to make its decision on the review without taking any further step to invite the applicant to appear before it and purported to exercise its discretion pursuant to s.426A of the Act in affirming the decision under review.
The applicant sought judicial review of the decision of the Tribunal in the Federal Magistrate’s Court. On 21 December 2007, Federal Magistrate Cameron found that the Tribunal had exceeded its jurisdiction in proceeding to make its decision on the review application because the criteria for the operation of s.426A had not been satisfied (SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073).
However, in the exercise of the Court’s discretion Federal Magistrate Cameron had regard to the six year delay by the applicant in seeking to review the Tribunal’s decision. The six year delay was between the date of the Tribunal’s decision and the application to the Federal Magistrates Court for judicial review of the Tribunal’s decision. Federal Magistrate Cameron found that the applicant had not provided an adequate explanation for the considerable delay in seeking judicial review of the decision of the Tribunal and, accordingly, refused to exercise the Court’s discretion to grant the applicant relief.
The applicant appealed to the Federal Court of Australia and, on 16 February 2009, Flick J refused leave to appeal to the Full Court of the Federal Court of Australia.
The respondent’s solicitor, Mr Markus, submitted that the Full Court of the Federal Court of Australia in Zubair v Minister for Immigration (2004) 139 FCR 344 made clear that Bhardwaj was not authority for the universal proposition that jurisdictional error on the part of a decision maker will lead to the decision having no consequences whatsoever. Mr Markus submitted that there was no reason to read “a decision”, as defined in s.5(9) of the Act, as excluding a purported privative clause decision and that, in the circumstances, there was a decision that had been finally determined the applicant’s application.
Mr Markus referred the Court to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 where the Full Court of the Federal Court of Australia found that a purported decision that had been made had legal effect to give jurisdiction to a tribunal and that the authorities are clear in relation to the legal consequences that may flow from a purported decision. Mr Markus submitted that the consequences of the orders made by Federal Magistrate Cameron are that the decision of the Tribunal remains in force. In those circumstances, the decision in respect of the applicant’s application for a protection visa would appear to have been finally determined.
I am not persuaded on the submissions that have been made on behalf of the applicant this afternoon that there is a serious question to be tried on that issue in light of the authorities to which I have been taken.
In the circumstances, the application for interim relief sought by the applicant is refused.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 7 April 2009
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