SZWDG v Minister for Immigration

[2015] FCCA 560

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 560

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the Tribunal had jurisdiction to hear the matter. 

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.412(1)(b), 476, 494C
Migration Regulations 1994 r.4.13

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

Applicant: SZWDG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 403 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 Mach 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms Lloyd

ORDERS

1. The proceedings be summarily dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 403 of 2015

SZWDG

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 in respect of a decision of the Tribunal delivered on 19 March 2015 within the Court’s jurisdiction under s.476 of the Migration Act 1958.  The application identifies the Court may hear and determine all interlocutory or final issues or may give directions for future conduct of the proceedings on the return date.

2. In this matter, the Court identified to the applicant that it was concerned that the application did not disclose an arguable case and that the Court was minded to deal with the matter under its summary disposal powers.  The applicant was invited to make submissions to identify and develop why there was an arguable case.  The applicant could not identify any ground.  The applicant asked for further time.  The Court is satisfied there is no utility in providing further time in respect of a case that is doomed for failure and that it would be unnecessary, increasing costs for the parties, and an inappropriate use of the Court’s hearing time.

3. I take into account the principles and caution in respect of the Court’s powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), and Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. The application in this case raised the following grounds:

   1. The Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicant at the hearing. The second respondent inadvertently failed to discharge its statutory duty. By consequence the Second Respondent decision at all in law.

   2. The tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

   3. The Tribunal failed to investigate applicant claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 19 January 2015 was effected by actual bias constituting jurisdictional error.

5. In this case, the Tribunal noted that the application for review was one in respect of a decision of the delegate dated 7 August 2013 in respect of which the delegate refused to grant the applicant a protection visa.  The review application was lodged with the Tribunal on 18 November 2014.  It was in those circumstances that the Tribunal found that it had no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

6. The Tribunal identified the requirements of s.412(1)(b) of the Act and r.4.13 of the Migration Regulations 1994 that require review application being made within 28 days after the applicant was notified of the decision.  The Tribunal identified that, by letter dated 9 December 2014, the Tribunal put to the applicant that his application for review appeared to have been made out of time and he was given until 2 January 2015 to make submissions in relation to that matter.  No submissions were received in response by the applicant.

7. The Tribunal noted that the applicant was taken under s.494C of the Act to have been notified of the decision on 16 August 2013 and therefore the prescribed period for which the application for review could be made ended on 13 September 2013. The application to the Tribunal was not received until more than a year after the expiry of that date. The Tribunal was entirely correct in concluding that it had no jurisdiction. In those circumstances, there is no substance in respect of any of the grounds identified by the applicant. I am satisfied that the Tribunal complied with its statutory requirements in coming to the view that it had no jurisdiction in the present case.

8. In these circumstances, the application is clearly doomed to failure and I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date:  12 March 2015