SZKUT v Minister for Immigration & Anor - [2008] FMCA 241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 241

MIGRATION – RRT decision – application for judicial review – failure to disclose previous judicial review application – new application dismissed as incompetent.

Federal Court Rules (Cth), O.54, O.54B
Federal Magistrates Court Rules 2001 (Cth), r.44.05
Migration Act 1958 (Cth), ss.424A, 425, 476, 477, 477(1), 477(2), 486D, 486D(1)

Migration Litigation Reform Act 2005 (Cth)

Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565, [2007] FCAFC 105
Ni v Minister for Immigration & Multicultural Affairs [2001] FCA 1293
S354 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 1929
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260, [2007] FCAFC 39
SZICV v Minister for Immigration & Anor (2006) 202 FLR 200, [2006] FMCA 1063
SZIVA v Minister for Immigration & Anor (2006) 204 FLR 95, [2006] FMCA 1494
SZJLV v Minister for Immigration & Citizenship [2007] FMCA 1501
SZKKC v Minister for Immigration & Citizenship [2007] FMCA 532
SZLHJ v Minister for Immigration & Anor [2007] FMCA 1947

Applicant:

SZKUT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1978 of 2007

Judgment of:

Smith FM

Hearing date:

21 February 2008

Delivered at:

Sydney

Delivered on:

21 February 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed as incompetent.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1978 of 2007

SZKUT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This application was filed in this Court on 26 June 2007, and applied for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 13 June 2001.
The applicant has presented to the Court a number of grounds of jurisdictional error. These include contentions concerning the application of s.424A of the Migration Act. They also include allegations of failure of procedural fairness and of obligations under s.425, in relation to the standard of interpreting at the Tribunal’s hearing, and whether the Tribunal might appear to have closed its mind to the merits of the applicant’s case. Those issues would require a close examination of a transcript, and probably also of the tapes of the Tribunal’s hearing.
The applicant also makes contentions in which she seeks to blame her migration agent, whom she employed to assist her in the proceedings in the Tribunal, for failing to present her documentary evidence and photographs to the Tribunal. This contention would require a detailed examination by the Court of the applicant’s evidence in relation to her dealings with her then agent, in the light of the principles identified by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
The application also raises issues in relation to the reasoning of the Tribunal, which would require consideration of its statement of reasons, and whether it reflects a proper appreciation of the effect of the Convention definition of “refugee” as adopted by the Migration Act.
As well as all these issues relating to the existence of jurisdictional error, the application and the Minister’s response raise issues concerning the applicant’s six years delay in commencing proceedings seeking to quash the Tribunal’s decision. The Minister invokes the Court’s discretion to refuse relief on the grounds of unwarranted delay, even where jurisdictional error is made out.
The matter was set down today to address all these issues, after passing through a first court date before me in July 2007 and a directions hearing in September 2007. The applicant has had the benefit of a referral to experienced counsel under the free legal advice scheme, and has clearly been receiving significant help from other sources also.
The Court Book filed on 1 August 2007 contains an application filed in the Federal Court on or around 16 July 2001 in matter N1078 of 2001, which sought an order of review under Orders 54 and 54B of the Federal Court Rules (Cth) in relation to the same decision of the Tribunal which is the subject of the present application. It also contains the judgment of Hely J given on 4 September 2001 in that proceeding, in which his Honour dismissed the application with costs on the ground that the applicant had not appeared on three occasions, even though his Honour was satisfied that she had been notified by letter posted to her (see Ni v Minister for Immigration & Multicultural Affairs [2001] FCA 1293).
In view of the previous proceeding, the Minister has raised an objection to the competency of the present application by reference to s.486D of the Migration Act. It provides:
486D Disclosing other judicial review proceedings
(1)A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
…
(4)Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5)In this section:
judicial review proceeding, in relation to a tribunal decision, means:
(a)a proceeding in the Federal Magistrates Court in relation to the tribunal decision; or
(b)a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c)a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review by a Tribunal under Part 5 or 7 or section 500.
It is submitted by the Minister that the application filed on 26 June 2007 failed to disclose the previous proceeding brought in the Federal Court. This is clear. The form of application to this Court under r.44.05 contains a section inviting an applicant to make such disclosures under the heading “Other Court Proceedings”, and draws attention to the provisions of s.486D which require it. That section was left blank in the application filed by the present applicant.
On 14 November 2007, the applicant sought to file in the Registry an amended application apparently prepared by her free legal adviser, which correctly completed the section “Other Court Proceedings” so as to refer to the previous Federal Court proceeding in 2001. It appears that the Registry did not accept it for filing, but left it in the correspondence section of the file. I have today allowed it to be filed in Court, subject to further argument concerning the effectiveness of the applicant’s attempt to amend the original application so as to complete the section “Other Court Proceedings”.
In my opinion, however, the filing of an amended application containing the required disclosure could not satisfy the requirements of s.486D(1), even taking into account the retrospective effects of an amendment under normal principles of Court procedure. This is because the required disclosure is expressly directed to be made at a particular point in time, being the time “when commencing the proceeding”. The requirement as to the content of the initiating document therefore, in my opinion, has the same incurable character as I found in s.477(2) in relation to an application for extension of time (see SZICV v Minister for Immigration & Anor (2006) 202 FLR 200). My opinions in this respect were upheld in the Full Court by all Justices, notwithstanding that there was a difference of opinion as to the construction of the original application in that case (see SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260, [2007] FCAFC 39). Prima facie, therefore, the present application was not permitted to be commenced by s.486D(1), and the Court’s powers are unavailable to cure the defect in the original application.
The legal question which arises is whether this defect renders incompetent the proceeding which has been commenced, in the sense that the Court has no jurisdiction to determine the merits of the claims made in the application. Did Parliament intend to make the disclosure required by s.486D a condition of the statutory jurisdiction of this Court, comparable to the effect of a time limit under s.477 which was upheld in SZICV by the Full Court?
Two of my colleagues have indicated an opinion that it does (see S354 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 1929 at [88] and SZLHJ v Minister for Immigration & Anor [2007] FMCA 1947 at [9] and [10]). I am not persuaded that their opinions are incorrect, and would respectfully follow their opinion. In both cases, in my opinion, it provided part of the ratio decidendi of the judgment, although in each of them the Federal Magistrate also found other reasons for dismissing the application.
In my opinion, the jurisdictional nature of s.486D emerges from the language and the context of the section, and from the purpose of the amending legislation which inserted it. As is revealed in the explanatory memoranda accompanying the Migration Litigation Reform Act 2005 (Cth), the new provisions in Pt.8A of the Act attempted to meet a problem faced by the Courts arising from the repeated bringing of judicial review proceedings. Section 486D was intended to require applicants to be candid with the Court in that respect, at the time when they initiated their new proceeding. The injunction in s.486D(1): “a person must not commence …”, is in my opinion to the same effect as the opening language of s.477: “an application … must be made to the court within 28 days …”. Both appear to be intended to condition this Court’s jurisdiction. As with s.477, s.486D provides no expressed sanction for a failure to comply, and this also suggests that compliance was intended to be a matter going to the competency of the application.
In my opinion, the present application should be dismissed as incompetent if I am satisfied that the previous proceeding which was dismissed by Hely J was one which was “already brought by the person”, being the present applicant. In this respect, I accept these words should be construed strictly, so as to require the Court to be satisfied that the earlier proceeding was brought by or on behalf of the person bringing the second application with that person’s approval and authority.
When this issue was raised by me at the start of today’s proceeding with the applicant, she denied any knowledge of the earlier Federal Court proceeding. In those circumstances, I proceeded with the hearing by eliciting from the applicant her full oral evidence going to this and other factual issues in the matter, including questions of delay in bringing the fresh proceeding, and her allegations concerning her migration agent. She was also subject to cross‑examination on those matters.
I have therefore had a full opportunity to assess the applicant as a witness. I found that she was a witness who could not be relied upon to tell the truth in relation to matters which she believed might affect the outcome of her case. Her unreliability as a witness was particularly demonstrated when a clear inconsistency emerged between her evidence that she first gave photographs to her agent for transmission to the Tribunal after she had attended the Tribunal hearing in 2001, and the transcript of her evidence at that hearing, in which she repeatedly maintained that she had given the photographs to the agent prior to the hearing. Her responses to questioning on this matter, and on a number of other matters, showed obtuseness and prevarication, and not a proper attempt to tell the truth. I gained an impression from her responses to cross‑examination that she was attempting to maintain a version of events, rather than the truth.
I do not accept the applicant’s denials that she was unaware of the commencement of the Federal Court proceedings, and gave no authority for them to be brought in her name. She gave evidence that within a short time of the Tribunal handing down its decision by post to her, she was aware of a covering letter from the Tribunal indicating the outcome of her application, and was aware of the reasoning given by the Tribunal. She said that these documents were read to her by a friend. She claimed to have then disputed with her previous agent whether he had forwarded her evidence to the Tribunal. She said that she was then introduced to another agent for assistance, through her friend. The new agent, Ms Xue, attended at her home shortly after she received the Tribunal’s letter, and discussed her case with her. She recalled that she “signed an authority”, enabling the agent to take further steps. She said that the agent referred to her having a right of appeal to a court.
However, the applicant denied any memory of authorising an application to be made to the Federal Court. When presented with the application to the Federal Court, she conceded that it carried her signature, but she claimed to have no memory of the document which she signed at the request of Ms Xue. She claimed not to have been aware that she had signed an application which was intended to be filed in the court. She had no explanation as to how it came to be filed in the absence of her giving authority and requesting that it be filed.
Even in the absence of other reasons for doubting the applicant’s credibility in relation to these denials, I would find it difficult to believe that the application was not filed in the Federal Court at her request and with her authority. The letter from the Tribunal to the applicant, which she concedes that she received and was read to her, contained clear information:
You have the right to seek review of this decision by the Federal Court. An application for review must be lodged with the Court within twenty‑eight (28) days of notification of this decision. You are taken to have been notified seven (7) days after the date of this letter. You must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal. Federal Court proceedings are not private unless an order has been made by the court suppressing your name. I strongly advise you to seek legal advice if you wish to seek review by the Court.
I do not believe the applicant’s claims not to have been told about that paragraph. She may now have no recollection of it, but in my opinion it is probable that she was aware at the time of receiving the Tribunal’s decision and its covering letter that she had 28 days to appeal to the Federal Court. In that context, and in the context of her admission that she was aware of a right of appeal, I think it probable that the bringing of an appeal to the Federal Court was discussed with Ms Xue when she met her. I consider it probable that she understood, when signing this document, and possibly other documents, that she was authorising and requesting the bringing of the application to the Federal Court.
Although I am prepared to accept that the address for service shown on the application to the Federal Court may not have been the applicant’s own residential address, I do not accept that that fact indicates that it was brought without her authority. I note that the solicitors for the Minister in that proceeding, Blake Dawson Waldron, on at least one occasion sent a letter to the residential address of the applicant given to the Department informing her of the listing of the matter. Whether the applicant in fact received that correspondence, or was ever properly informed by Ms Xue as to the dates for the listing of her case in the Federal Court, is a matter on which I am left uncertain on the evidence.
However, in the present case, for the above reasons I find it more probable than not that the application filed in the Federal Court in 2001 was an application which was “brought by” the applicant within the meaning of s.486D(1). I therefore am required to dismiss the present application as incompetent, since it did not contain any disclosure of the earlier proceeding.
I note that the applicant’s admission that she had actual knowledge of the decision of the Tribunal and of its reasons in June 2001, would also render the present application incompetent under s.477(1), upon the interpretation taken in this Court prior to the Full Court’s decision in SZKKC v Minister for Immigration & Citizenship [2007] FMCA 532. I would with confidence make a finding that this applicant had “actual” as distinct from “deemed” notice of the present Tribunal’s decision in June 2001, according to this Court’s interpretation.
I explained the different interpretations in SZJLV v Minister for Immigration & Citizenship [2007] FMCA 1501:
3.Under the construction of s.477 which was adopted in this Court, in particular in my judgment in SZIVA v Minister for Immigration & Anor (2006) 204 FLR 95, the time limit applied if the Court were satisfied as to two things. First, that notification had been made by the Tribunal in accordance with one of the forms of notification set out in the procedures governing the decision maker, in this case s.430B of the Migration Act. Secondly, where the Tribunal followed a form of notification which did not include actual delivery to the applicant in person, that at some later point of time the applicant, in fact, had received a copy of the Tribunal’s decision and reasons. My opinions were followed in this Court, albeit with some difference of opinion with Driver FM in relation to what was needed for there to be an actual “receipt” of the decision.
4.However, the Full Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 has implicitly declined to follow this Court’s construction of s.477. Their construction, as I understand it, is that an “actual notification” can only occur where the formal mode of notification which was followed by the Tribunal itself involved an actual delivery to and receipt by the applicant in person. The fact of an “actual notification” within ordinary language at a subsequent date is insufficient, in their Honour’s opinion, to cause the time limit to commence to run, if the Tribunal had followed one of the “deeming” modes of notification provided under the Migration Act.
Under the interpretation taken in SZKKC, which is binding upon me, the present application would not be incompetent under s.477 since it was not personally served on the applicant. However, I note that the High Court has recently granted special leave to appeal from SZKKC.
I would also record that the applicant’s evidence seeking to explain her conduct between the years 2002 and 2007 failed to show any justification for overlooking the long delay in commencing a court proceeding.
On her version of events given to this Court she made several phone calls to Ms Xue during the later parts of 2001 and 2002, to inquire as to what Ms Xue was doing on her behalf. She claims to have been told in the last conversations that nothing yet had happened. She said that thereafter she took no further action to contact Ms Xue or the Department of Immigration, nor to make any inquiries as to her immigration status or rights, until, in 2007, a friend suggested that she could come to this Court with her present application. She conceded under cross‑examination that she was aware throughout that time that she was present in Australia without lawful permission. Moreover, as I have found above, she did authorise an earlier application to the Federal Court, but failed to pursue it.

All those circumstances, including the substantial length of the delay and the absence of reasonable explanation allowing the Court to overlook it, would provide a clear ground for refusing relief in this case, even were any of the grounds of jurisdictional error raised by the applicant to be made out. However, in view of my opinion about the competency of this application, I do not find it necessary further to explore that discretion, nor the grounds of jurisdictional error which have been raised by the applicant.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 March 2008