SZSBU v Minister for Immigration

[2015] FCCA 853

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 853

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.476, 477, 494C
Migration Regulations 1994, rr.4.31, 4.31AA

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZSBU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 598 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

Solicitors for the Applicant: Ms V. Tannous

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 598 of 2015

SZSBU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by that Tribunal made on 23 January 2015 concluding that it did not have jurisdiction to entertain an application for review brought by the applicant. 

2. The grounds of the application are as follows:

   1. RRT and DIBP have failed to consider my case in accordance with Natural Justice and

   Procedural Fairness

   2. RRT has failed to serve the documents in proper manner

   3. RRT and DIBP have failed to do correspondences incorrectly and insufficiently

   4. THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING HIS CASE PROPERLY AND ADEQUATELY

   5. The applicant was not aware of the way in which the Refugee Review Tribunal processes application nor was he in a position to properly present the facts on which he relied.

   6. The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application.

   7 In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.

   8. THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING HIM THE OPPORTUNITY TO PROPERLY CONSIDER HIM LEGAL POSITION, GIVEN HIM LIMITATION IN THE LEGAL SYSTEM

   9. THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT'S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECCESSARIL Y LIMITED AND CONSTRITED AND WHICH FITTED THE TRIBUNAL MEMBER'S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW

   10. The Tribunal Member therefore regarded the Applicant's as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness

   11. The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

   12. Had the Tribunal given proper consideration to the facts instead of merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review.

3. It is clear an extension of time would be required under s.477 in respect of the application that has been filed. The application identifies on its face in respect of the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Court identified to the solicitor for the applicant that the Court was minded to consider whether or not this matter should be dealt with summarily.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. The grounds of the application certainly fail to identify any proper jurisdictional error.  It is clear that the jurisdiction of the Tribunal is confined relevantly in relation to compliance with the time requirements that I specified in respect of a decision that in this case was delivered on 9 September 2014 refusing to grant a protection visa.  In the end, the Tribunal was entirely correct that the application must be lodged by one of the methods and within the time limits specified by the Migration Act s.412 and Migration Regulations 1994 and r.4.31 and r.4.31AA.

6. It is clear that the Tribunal wrote to the applicant on 9 December 2014 identifying that there had not been compliance with those requirements. The Tribunal identified a response that was received which failed to address the issue of non-compliance. It’s clear that as a result of the application of s.494C, the applicant is taken to have been notified of decision on 18 September 2014 and the prescribed period within which the application for review could be made ended on 16 October 2014.

7. It is clear that the Tribunal found that the application for review was not received by one of the two specified methods before the end of 16 October 2014.  There is no scope for any discretionary consideration and there’s no substance in the contended assertion of a want of procedural fairness by the Tribunal.  There is no arguable jurisdictional error.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015