SZLEJ v Minister for Immigration

Case •

[2008] FMCA 211

•

28 February 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 211
MIGRATION – Visa – Protection visa – application for review of decision of the Refugee Review Tribunal – where Tribunal decision made in October 1995 – whether application is incompetent – whether application is out of time.
Migration Litigation Reform Act 2005, Sch 1 Item 42
Migration Act 1958 (Cth), ss.430, 486D, 477
Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 followed.
SZIIU v Minister for Immigration & Anor [2008] FMCA 69 followed.
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Applicant: SZLEJ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2484 of 2007
Judgment of: Scarlett FM
Hearing date: 13 February 2008
Date of Last Submission: 13 February 2008
Delivered at: Sydney
Delivered on: 28 February 2008

REPRESENTATION

Solicitor for the Applicant: Mr Jones
Solicitor for the Respondent: Ms Watson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed as incompetent.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2484 of 2007

SZLEJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The application before the Court is an application for a review of a decision of the Refugee Review Tribunal, dated 6th October 1995.  The decision of the Tribunal was posted to the Applicant on 9th October 1995.  The Tribunal affirmed the decision of a delegate of the Minister that the Applicant not be granted a protection visa. 

  2. The Applicant seeks judicial review of that decision.  In particular, he seeks the following orders: 

    i)A writ of certiorari removing into this Court to be quashed the purported decision of the Second Respondent.

    ii)A declaration that the Tribunal's decision is void and of no effect.

    iii)A writ of prohibition directed to the First Respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the Tribunal's decision or the delegate's decision.

    iv)An order that the First Respondent pay the Applicant's costs.

  3. In the alternative, the Applicant seeks an order by way of mandamus that the Second Respondent serve actual notice of the decision on the Applicant, with costs. 

  4. The First Respondent now the Minister for Immigration & Citizenship has filed a Response to the application opposing the application on the following grounds:

    a)The Applicant has failed to disclose previous judicial review proceedings as required by s.486D of the Migration Act 1958, being proceedings NSD1381/2003 (Applicant S1328/2003 v Minister for Immigration & Multicultural Affairs & Anor).

    b)The Applicant has delayed in bringing the present proceedings and has not provided any explanation for the delay.

    c)There is no jurisdictional error disclosed in the Refugee Review Tribunal's reasons for decision.

  5. The Applicant is represented by Mr Michael Jones, solicitor, who filed an amended application in which the Applicant discloses that he had been a member of a class action as “Applicant S1328 of 2003”. That matter was subsequently remitted to the Federal Court from the High Court as an individual case and dismissed in an interlocutory decision of Emmett J on 20th February 2004. 

  6. The First Respondent, the Minister, submits that the application was incompetent because:

    i)It is out of time.

    ii)A failure to comply with s.486D of the Migration Act.

  7. The Minister goes on to submit that if the Court takes the view that the application is competent then no jurisdictional error has been established.  Even if the Court were to find that there was a ground for relief,  the Court should withhold relief as a matter of discretion on the basis that there has been significant delay in bringing these proceedings without any explanation for that delay.

Background

  1. The background to this matter is that the Applicant, who is a national of the Islamic Republic of Iran, entered Australia on 2nd December 1993 as a close family visitor and was granted an entry permit by the then Department of Immigration and Ethnic Affairs valid until 2nd February 1994. He applied for refugee status on 4th February 1994. Later that year, on 1st September 1994 by virtue of the Migration Reform Act 1992, and by an amendment to that Act, a visa was introduced known as a protection visa, and that visa replaced visas and entry permits previously granted for that purpose.

  2. The Applicant's application for a visa was refused and on 4th October 1994 he lodged an application for review of that decision of the Refugee Review Tribunal.

  3. The Tribunal invited the Applicant to attend a hearing and he attended the hearing and gave evidence on both 20th and 25th September 1995. 

  4. The Tribunal heard evidence from the Applicant and on 6th October 1995 signed its decision affirming the decision under review that the Applicant not be granted a protection visa.

  5. A copy of the Tribunal decision and reasons for decision can be found in the Court Book at pages 102 through to 117. The Tribunal set out the Applicant's history and on a consideration of the Applicant's evidence made these findings:

    “In general, the Tribunal did not find the applicant to be a credible witness and is of the view that he has fabricated significant portions of his evidence in order to enhance his application.”[1]

    [1] See Court Book at page 115

  6. The Tribunal went on to find that the Applicant had fabricated his evidence of certain events and, in summary, the Tribunal did not find the Applicant to be credible. The Tribunal found that there was not a real chance that the Applicant would face persecution if he were to return to Iran either on the basis of his political opinion or his religion, and therefore the Tribunal found the Applicant was not a refugee and affirmed the decision under review.

Application for Judicial Review

  1. It appears that the Applicant commenced proceedings for review by means of joining a class action in the High Court of Australia which was subsequently to the Federal Court and dismissed in an interlocutory decision on 20th February 2004. It was not until 13th August 2007 that the Applicant lodged the current application and an affidavit in support.  His solicitor filed an amended application on 29th October 2007.

  2. The Minister for Immigration & Citizenship, to use the Minister's current title, relies on an affidavit of Dale Jennifer Watson, sworn 26th October 2007, setting out the Applicant's litigation and other history; and Mr Jones for the Applicant, filed an affidavit in Court on 13th February 2008, annexing a transcript of the Refugee Review Tribunal hearing on 25th September 1995. 

  3. First of all, it is necessary to deal with the claims by the Respondent Minister that the application is incompetent:

    i)For being out of time; and

    ii)For failure to comply with s.486D of the Migration Act.

The Applicant’s Submissions

  1. The Applicant submits that the Federal Magistrates Court has original jurisdiction in relation to a migration decision under s.476 of the Migration Act. Section 477 requires that an application must be made to the Court within 28 days of the actual (as opposed to deemed) notification of the decision. The Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKKC[2] has held that notice effected by means of any of the deeming provisions in the Act is not notice for the purposes of s.477. Such notice can only be effected by the Tribunal giving the record of the decision to the applicant personally.

    [2] [2007] FCAFC 105

  2. The Applicant relies on an interpretation of s.477 which allows the Applicant to apply to the Court at any time until 28 days after receiving actual notice. The Applicant submits that he never did. Mr Jones submitted that on 6th October 1995, the Tribunal decided to affirm the decision under review and on 9th October 1995 sent a copy of that decision by mail to the Applicant. The application had incorrectly stated the decision had not been the subject of other Court proceedings. That, in fact had been the case. 

  3. Mr Jones submitted that the Applicant has never been served with a notice of decision in the way contemplated by the Full Court of the Federal Court in SZKKC. The Applicant also submits that a failure to comply with s.486D of the Migration Act does not invalidate an application that has already been filed.

The First Respondent’s Submissions

  1. The Minister, in submitting that the application is incompetent, submits that the decision of the Full Court of the Federal Court in SZKKC has been wrongly decided. This, however, is a formal submission only, but I am of the view that this is an appeal decision from the Federal Magistrates Court and it is binding upon this Court.  I note that the High Court of Australia has now granted a special leave to appeal against the decision of the Full Court of the Federal Court.

  2. That, however, is not a matter that I can take into consideration, and I certainly do not consider that it is any part of this Court's function to delay hearing this application, especially when the Applicant is currently in Immigration Detention, in order to wait the outcome of the High Court's decision. I have no doubt that the High Court will hand down its decision in due course and this Court will be guided by that decision when it is handed down.  In my view, the law as it stands is that set out by the Full Court of the Federal Court in SZKKC. 

  3. The submission by the Minister is that the Full Court of the Federal Court in SZKKC focused on the existence of a code being in place, which dictated methods by which the Refugee Review Tribunal must give a copy of the decision to an applicant. As all of the relevant provisions set out in the Act regarding notification of a decision, except for the provision requiring that a copy of the decision should be handed to the Applicant by the Refugee Review Tribunal, were deeming provisions, it was held that all other methods were ineffective when actual notification was required.

  4. The submission is that, unlike the regime considered in SZKKC, the relevant legislative provisions as at the date of handing down the RRT decision in this matter in October 1995 are not intended to be a code. Rather, they set out various ways in which the Tribunal is taken to have given a copy of the decision to the Applicant. In this regard, they set out a regime where an applicant is deemed to have been given a copy of the decision, whether or not that has, in fact, occurred. Unlike s.430B(6), there is no direction to the RRT that the decision must be given to the Applicant by one of the methods specified.

  5. The Minister submits that provided the copy of the decision has come into the hands of the Applicant it is irrelevant how this occurred for s.477 to take effect.

  6. In the present case, it is submitted, it is clear that by at least 29th May 2003, when the Applicant commenced order nisi proceedings in the High Court of Australia, he would have had actual notice of the decision, such that s.477 would apply. In the light of the transitional provisions applicable to that section, the Applicant therefore would be deemed to have had actual notice of the decision on 1st December 2005[3] and the time for commencing this proceeding would have commenced from that date.

    [3] See Schedule 1 Part 2 Item 42 Migration Litigation Reform Act 2005

  7. The Minister submits that the application is incompetent and should be dismissed on that basis.

  8. The Minister has referred to the Court to a decision by Raphael FM in SZIIU v Minister for Immigration & Anor[4].  In that case, the applicant applied for a protection visa on 7th October 1997 which was refused on 15th December 1997. On 7th January 1998, the applicant sought review of that decision from the Refugee Review Tribunal and on 1st September 1998 the Tribunal wrote to the Applicant at an address given.

    [4] [2008] FMCA 69

  9. The Applicant did not respond to the letter, nor did she attend a hearing of the Tribunal scheduled to take place on 15th October 1998 and on 22nd October 1998, the Tribunal wrote to the Applicant advising her of the decision had been reached.  The Applicant applied for a review of the 1998 decision of the Tribunal in February 2006.  In SZIIU, Raphael FM set out in the issues and his findings, at [4] and [5]:

    “[4] The applicant made her application for review of this 1998 decision of the Tribunal in February 2006. I accept that the transitional provisions to the Migration Litigation Reform Act 2005 Schedule 1 Item 42 and s.477 of the Migration Act 1958 (the “Act”) as amended had the combined effect of allowing this applicant twenty-eight days from 1 December 2005 to lodge an application for review as of right and a further period totalling eighty-four days including the original twenty-eight during which the court may, at its discretion, extend the period. The application was lodged within that eighty-four day window of opportunity and would therefore be valid if I was prepared to grant an extension. It is also argued that the applicant’s filing of her application in February 2006 was within any time limit because there was no evidence that the Tribunal decision was actually notified to her in the sense of being personally served as is required by s.477 of the Act: Minister for Immigration v SZKKC [2007] FCAFC 105.

    [5]The SZKKC argument cannot avail this particular applicant because the Act as it applied on 22 October 1998 did not establish a code for notification and there was no equivalent to the current ss.430B(6) and 441C, which the court in SZKKC regarded as crucial to its decision that all the methods mentioned in the current s.441A with the exception of s.441A(2)) involved receipt and so could not constitute “actual (as opposed to deemed) notification” within s.477(1). If the applicant was made aware of the existence of the Tribunal decision in 1998, then that notification is deemed to have taken place on 1 December 2005 and the provisions of s.477 apply.”

Conclusions

  1. Mr Jones, for the Applicant, urges on the Court that SZIIU is wrongly decided. I am not of that view. In my view, with respect,  the decision of Raphael FM correctly sets out the law as it was in force at the time. It follows that, as his Honour put it, the SZKKC argument does not avail the Applicant in this case. I am obliged by the principle of judicial comity to follow a decision on the point by one of my colleagues unless I am of the view that it is clearly wrong. I am certainly not of the view that it is clearly wrong. Quite the reverse, in fact, I am satisfied that it is correctly decided.

  2. It, therefore, follows that this application is incompetent because it is out of time. That, to my mind, is a deciding factor and it is not necessary for the Court to decide whether the application, as filed, was incompetent due to non compliance with s.486D of the Act. That argument can wait for another day.

  3. It is not, therefore, necessary for me to decide on the substantive application. I would comment, however, that the argument made about a discretionary refusal of relief on the ground of delay is a particularly strong argument. The affidavit of Dale Jennifer Watson shows that the Applicant and others on his behalf had made several requests to the Minister for Immigration to exercise his power under s.417 of the Migration Act and annexed to Ms Watson's affidavit is a request to the Minister for Immigration and Multicultural Affairs to act in this way, dated 11th May 1997. 

  4. Also annexed is a letter from the Minister to the Applicant, dated 18th March 1998 advising the Applicant Minister had decided not to exercise his power under s.417 of the Act. It is also relevant from Ms Watson's affidavit that the records of the Department showed that the Applicant had previously been detained at the Immigration Detention Centre at Villawood from 1st October 1998 to 23rd June 1999. 

  5. The Applicant was further detained at Villawood on 26th June 2007 and remains in detention, certainly, as at the date of the hearing before me on 13th February 2008. In my view, even if I were satisfied that jurisdictional error had been made out by the Applicant in respect of the Tribunal's decision, the extraordinary delay would be a significant factor towards a discretionary refusal of relief. 

  6. The fact is there was no evidence submitted which provides a satisfactory explanation for this considerable period of delay. There was no affidavit evidence from the Applicant and, in my view, the failure of evidence leaves the delay as an unwarrantable delay which of itself justifies the withholding of relief.  In particular, I refer to S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[5].

    [5] [2004] FCAFC 283

  7. In my view, however, the application is incompetent because it is out of time and I propose to dismiss the application as incompetent with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  25 January 2008


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