SZMYU v Minister for Immigration

[2009] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 117

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal lacked jurisdiction as delegate’s decision previously reviewed by the Tribunal – Tribunal entitled to assume that the first Tribunal decision was validly made in the absence of any judicial review of that decision.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

SZLGL v Minister for Immigration [2008] FMCA 844

Applicant: SZMYU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3087 of 2008

Judgment of: Driver FM

Hearing date: 19 February 2009

Delivered at: Sydney

Delivered on: 19 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application filed on 25 November 2008 be dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3087 of 2008

SZMYU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me this morning at the request of the first respondent.  I dealt with the matter at a show cause hearing on 10 December 2008.  At that time I found that the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 November 2008, that the Tribunal had no jurisdiction because the decision of the delegate sought to be reviewed had previously been reviewed by a differently constituted Tribunal which handed down its decision on 23 August 2005, was correct in law and hence the Tribunal decision was free from jurisdictional error.

2. However, a peculiarity in this case was that the first Tribunal decision had never been subject to judicial review and so the second Tribunal decision was based on an assumption of validity of the first Tribunal decision, rather than any judicial finding that the first decision was free from jurisdictional error.

3. In the circumstances, rather than dismiss the application on 10 December 2008, I made the following orders:

   2.The Court declares that the decision of the Refugee Review Tribunal dated 14 November 2008 is free from jurisdictional error and a privative clause decision subject to the proviso that the earlier decision of the Tribunal in relation to the same decision of the delegate, being the decision of the Tribunal handed down on 23 August 2005, was itself free from jurisdictional error.

   3.The applicant has leave and liberty to amend the application filed on 25 November 2008 to seek review of the decision of the Refugee Review Tribunal handed down on 23 August 2005 provided that that amended application is filed and served on the respondents no later than 30 January 2009.

4. My purpose was to give the applicant the opportunity to seek judicial review of the first Tribunal decision in order to test the validity of that decision, which had never been reviewed.  I made a number of supplementary orders which were conditional upon order 3 being complied with.  There are currently two difficulties.  The first is that order 3 has not been complied with.  The applicant’s son wrote to the Minister’s solicitors by letter dated 7 February 2009, and filed in the court registry on the same day, explaining difficulties that the applicant had in complying with order 3 due to a combination of health problems and an inability to obtain useful legal advice about the first Tribunal decision in the absence of a transcript of the first Tribunal hearing or other documents relating to that decision, apart from the decision record itself.

5. The second difficulty is, as pointed out by the solicitor for the Minister this morning, that the Tribunal was entitled to treat the first Tribunal decision as valid in the absence of any finding by a Court of invalidity.  On reflection, that position must be right.  Administrative decisions are assumed to be valid until they are found by a Court to be invalid.  I agree, with respect, with the views expressed by Scarlett FM in SZLGL v Minister for Immigration [2008] FMCA 844 at [34].

6. On reflection, the better course would have been to dismiss the show cause application on 10 December 2008.  That is the order that I will now make.  That order is without prejudice to the applicant’s rights to file at some future point in time an application seeking review by a court of the first Tribunal decision.

7. An issue in this Court, which would probably have to be determined in advance of anything else, is whether such an application would be competent, having regard to the passage time since the first Tribunal decision was made and presumably notified to the applicant.  I make no finding in relation to that issue. 

8. I will order that the application filed on 25 November 2008 be dismissed.

9. The Minister seeks an order for costs fixed in the sum of $2,500.  The applicant’s son stated that his mother would have difficulty paying that debt.  Impecuniosity is not, however, a reason for the Court to refrain from making a costs order.  I agree that costs should be awarded in accordance with the Court scale.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 February 2009