SZCZM v Minister For Immigration And Multicultural And Indigenous Affairs [2005] FCA 679 (23 May 2005)

Last Updated: 6 July 2005

FEDERAL COURT OF AUSTRALIA

SZCZM v Minister For Immigration And Multicultural And Indigenous Affairs [2005] FCA 679

SZCZM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 184 OF 2005

EDMONDS J

23 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 184 OF 2005

BETWEEN:	SZCZM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	23 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application for leave to appeal be dismissed.
2.	The applicant pay the respondent’s costs in the sum of $700.00.

THE COURT DIRECTS, IN CHAMBERS, THAT:

3.	A copy of the transcript of today’s hearing be placed on the court file.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 184 OF 2005

BETWEEN:	SZCZM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EDMONDS J
DATE:	23 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

1 This is an application for leave to appeal against a judgment of the Federal Magistrates Court of Australia. In that court the respondent had applied for summary dismissal of the applicant’s application on the basis that the application did not disclose a reasonable cause of action.

2 It is not entirely clear whether the respondent based its application on the Tribunal’s finding that the applicant’s purported application for a protection visa was not a valid application, or, alternatively, on the basis of the Tribunal’s finding that:

"(In any event, even if the Tribunal had proceeded on the basis that the application was valid, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore the Applicant would not have satisfied the criterion set out in s.36(2) of the Act for a protection visa.)"

3 However, it seems to me that the thrust of the Federal Magistrate’s judgment was to the effect that the applicant’s application for a protection visa was not a valid application. At [11] of his reasons the Federal Magistrate said:

"The Tribunal noted that the applicant had not filled in the details required and there was not a substantial compliance with the form. At page 66 of the court book the Tribunal found that the application was not valid and could not be considered."

4 At [14] his Honour went on to say:

"To my mind the decision of the Refugee Review Tribunal is correct in law. The applicant submitted an application for a protection visa and never gave details to the delegate of the Minister as to why he claimed to be a refugee. He said he would file that information later, but he had not done so by the time the delegate refused his application."

His Honour then referred to s 47 of the Migration Act 1958 (Cth) and in particular subsections (3) and (4) and then, at [18], his Honour said:

"As such, the Tribunal could not consider the application for review and in my view the only course open to this court is to dismiss the application."

5 The respondent accepted that the basis for the Federal Magistrate’s judgment dismissing the application was the Tribunal’s finding that the applicant’s application was not a valid application. In the circumstances it was not necessary for the Tribunal or the Federal Magistrate to go on and consider the merits of the application.

6 Ms Mak, a solicitor appearing on behalf of the respondent, submitted that the judgment was interlocutory because of the process by which the notice of motion was filed by the respondent and his Honour’s consideration of whether the RRT decision was impeachable or not or vitiated by jurisdictional error.

7 Both the Tribunal and the Federal Magistrate held that the applicant’s application for a protection visa was not a valid application. That being the case, certain consequences follow. Firstly, the provisions of s 349 apply, that section provides:

349 Powers of Migration Review Tribunal

(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may:

(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.

(3) If the Tribunal:

(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

8 In this case the Tribunal’s decision that the applicant’s application was not a valid application is taken to be a decision of the Minister: subs (3).

9 Secondly, s 47 applies:

47 Consideration of valid visa application

(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

10 Subsection (4) makes it clear that the Tribunal’s decision, which is now the Minister’s decision, is not a decision to refuse to grant the protection visa. Section 48A of the Act, which would otherwise preclude the making of a further application while the applicant is in the migration zone, does not apply to this applicant. The respondent accepted this view of the provisions and indeed had taken the step of writing to the applicant on 17 December 2004 advising him that the Minister did not consider that his application was a bar to the making of a new and valid application.

11 Of course, that application might meet the same fate if the applicant pursues the course he has pursued to date in not providing the information that the application calls for in order to be a valid application, but at least it is not regarded as a decision to refuse him the visa and therefore he is free to make a fresh application.

12 The Federal Magistrate’s judgment is therefore interlocutory and leave to appeal is required. In this case I would refuse leave to appeal. The Federal Magistrate’s decision is not attended with sufficient doubt to warrant it being reconsidered by the Full Court and as the applicant is free to bring a fresh application for a protection visa I do not believe any substantial injustice will result by virtue of leave being refused. I therefore order that leave to appeal be refused with costs.

13 I am asked by the respondent to order a fixed amount to be paid as costs, namely $700. The applicant makes no submission in that regard and I will make that order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 1 June 2005

The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 May 2005
Date of Judgment:	23 May 2005