SZCZM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 679

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