SZGDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1834

FEDERAL COURT OF AUSTRALIA

SZGDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1834 SZGDC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1539 of 2005 EDMONDS J 7 DECEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1539 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 7 DECEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 3. The orders of Scarlett FM be varied so as to dismiss the application for want of jurisdiction.

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 1539 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE: 7 DECEMBER 2005

PLACE: SYDNEY

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

Edmonds J: 1 The appellant is a citizen of India who arrived in Australia on 17 April 1993 and applied for a Protection Visa on 21 November 1996. His application was refused by a delegate of the Minister on 24 April 1997 and on 22 May 1997 he applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). The decision of the Tribunal affirming the decision of the delegate was made on 14 May 1998 and sent to the appellant by letter dated 18 May 1998. 2 In submissions accompanying his primary visa application and a written submission to the Tribunal, the appellant claimed that he was a Muslim and feared harm through communal violence in India. On 1 April 1998 the Tribunal wrote to the appellant informing him that it was not able to reach a decision favourable to him on the papers and inviting him to attend a hearing. The appellant initially said that he would attend the hearing but later through an 'adviser' informed the Tribunal that he did not wish to attend. 3 The Tribunal therefore made its decision without hearing oral evidence from the appellant. The Tribunal noted that the appellant had been put on notice that it was unable to make a favourable decision on the information before it, but that the appellant had not provided any further information in support of his claims despite ample opportunity to do so. The Tribunal observed that it had not been given the opportunity to explore aspects of his claim with the appellant and that a number of relevant questions were therefore left unanswered. In the result, the Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution within the meaning of the Convention. 4 The proceedings in the Federal Magistrates Court were commenced by the filing of an application on 19 April 2005. An amended application, filed on 21 June 2005, formed the basis of the consideration of the matter by Federal Magistrate Scarlett. This document set out several grounds for review including: (1) That the Tribunal's decision was in breach of procedural fairness. (2) That the Tribunal denied the applicant natural justice in that it did not turn its mind to the fact that the applicant had no contact with his family or home country for several years. (3) That the Tribunal did not turn its mind to that fact constituted a failure by the Tribunal to give genuine and realistic consideration to the application and to act in a bona fide manner. (4) That the Tribunal refused to grant a protection visa without any proper grounds and proper investigation. (5) That there was no evidence or other material to justify the making of the decision. (6) That there was nothing found against the applicant to refute his credibility and therefore a breach of natural justice had occurred. 5 His Honour concluded that these grounds were without merit for reasons which he gave and he held that the Tribunal's decision was not affected by jurisdictional error. In my view, his Honour's conclusion was undoubtedly correct. The notice of appeal in this Court asserts that his Honour 'failed to identify the legal errors' but gives no indication of what these errors might be. There was also a ground that his Honour 'failed to understand' that the appellant has a genuine claim of persecution within the meaning of the Convention. I agree with the respondent's submission that that was not a matter for his Honour to determine. At the end of the day, the Tribunal was simply not satisfied that the appellant had made out any basis for a conclusion that he faced a real chance of persecution, for any Convention reason, in India. That conclusion flowed from the lack of detail and supporting material in his claims. It was a conclusion that was clearly open to the Tribunal and one which was reached after alerting the appellant to the likely rejection of his application and extended an invitation to a hearing to which he was entitled. His Honour's conclusion, that the application for review was without merit as there was no jurisdictional error, was clearly correct. 6 The foregoing reasons would be sufficient to dismiss the appellant's appeal. The respondent's counsel submitted that his Honour's orders should be varied in one respect. His Honour had noted correctly that the Tribunal decision being free of jurisdictional error was a 'privative clause decision' as defined in s 474(2) of the Migration Act 1958 (Cth) ('the Act'). As a result, the application to the Federal Magistrates Court came within subs 477(1)(a) of the Act and the limitation period set out in the subsection applied. The application, having been filed some years outside that period, it was submitted that the Court lacked jurisdiction. The reasons for this conclusion is set out at length in the respondent's written submissions: (i) At the time of the Tribunal's decision, the Federal Magistrates Court did not exist. The Court came into existence upon the commencement of the Federal Magistrates Act 1999 (Cth) on 23 December 1999 and did not acquire any jurisdiction in respect of decisions under the Migration Act until the commencement of Schedule 3 to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) ('the Magistrates Jurisdiction Act') on 2 October 2001 (coinciding with the repeal and replacement of Part 8 of the Migration Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ('the Judicial Review Act')). (ii) The Magistrates Jurisdiction Act inserted s 483A of the Migration Act, which provides that the Federal Magistrates Court has the same jurisdiction as this Court 'in relation to a matter arising under this Act'. The relevant jurisdiction of this Court is that conferred by s 39B of the Judiciary Act 1903 (Cth). (iii) Section 483A, and the other provisions of Part 8 which deal with applications to the Federal Magistrates Court, were inserted by Schedule 3 to the Magistrates Jurisdiction Act. Item 18 of Schedule 3 provided: The amendments of the Migration Act made by this Schedule apply in relation to applications made under s 477 of that Act after the commencement of this item. (iv) Two important points need to be made about this provision. (a) First, it confirms that the jurisdiction of the Federal Magistrates Court arises, subject to the operation of s 477(1A), in relation to decisions under the Act made both before and after the commencement of s 483. The critical factor is when the application to the Court is made. The fact that the Tribunal's decision was made long before the conferral of jurisdiction is therefore not in itself a barrier to the exercise of jurisdiction in respect of it. (b) Secondly, it indicates that the drafter understood s 477 to be the provision that governed all applications to the Federal Magistrates Court in respect of matters arising under the Migration Act – even where the decision under review predates the commencement of the provision. That understanding is consistent with: (1) the terms of s 477(1A); (2) the provisions governing the application of the remaining provisions of Part 8; and (3) the normal principles governing the application of legislative amendments of this kind. (v) Section 477(1A) is expressed to apply to an application in respect of a 'privative clause decision'. That expression is defined in s 474(2) of the Migration Act, in terms which make no reference to the time when the decision is made. In its terms, therefore, s 477(1A) applies to an application to the Federal Magistrates Court in respect of a decision by the Tribunal, whenever the decision is made. (vi) The definition of 'privative clause decision' in s 474, along with the bulk of the provisions in Part 8, was inserted by the Judicial Review Act as noted above. Clearly enough, the amendments effected by the Judicial Review Act and the Magistrates Jurisdiction Act were intended to come into effect in a complementary way. The application of the new Part 8 inserted by the Judicial Review Act was governed by item 8 of Schedule 1 to that Act which provided, inter alia, that the new provisions would 'apply in respect of judicial review of a decision made under the Migration Act' if the decision was made before the commencement of the new provisions and, as at that date, no application for judicial review had been lodged. This, of course, is the situation in the present case: had the appellant filed his application in this Court, there is no doubt that it would have been subject to the time limit in s 477(1). (vii) There is nothing surprising about amendments to provisions governing the enforcement of rights (including the jurisdiction of courts) applying so as to affect, or even preclude, existing or future proceedings in respect of events that have already occurred. Legislation is presumed to operate in that way, in the absence of express transitional provisions. The provisions under discussion affect only the means of enforcement of any right an applicant may have to have the Tribunal's decision set aside. That right remains enforceable, at least in principle, through proceedings commenced in the High Court. (viii) If the appellant were able to establish that the Tribunal's decision was affected by jurisdictional error, s 477(1A) would have no operation on any view. It would follow that the Federal Magistrates Court had jurisdiction in the matter. (It would also follow that, on the merits, his Honour was wrong to dismiss the application.) (ix) However, there being no such error in the Tribunal's decision, it follows that the Federal Magistrates Court did not have (and never had) jurisdiction in relation to the decision of the Tribunal. From the moment the Court's jurisdiction was conferred by s 483A, it was excluded in relation to the present decision by the fact that an application consistent with s.477(1A) was impossible. 7 In short, the legislative history confirms that the jurisdiction of the Federal Magistrates Court arises subject to the operation of subs 477(1)(a) in relation to decisions under the Act, made both before and after the commencement of s 483A. In that regard, I agree with what was said by Branson J in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [28]. Section 477(1)(a) is expressed to apply to an application in respect of a 'privative clause decision'. That expression is defined in subs 474(2) of the Act in terms which make no reference to the time when the decision is made. 8 In terms, therefore, subs 477(1)(a) applies to an application to the Federal Magistrates Court in respect of a decision by the Tribunal whenever the decision is made. If the appellant were able to establish that the Tribunal's decision was affected by a jurisdictional error, subs 477(1)(a) of the Act would have no operation on any view. It would follow that the Federal Magistrates Court had jurisdiction in the matter. However, there being no such error in the Tribunal's decision, it follows that the Federal Magistrates Court did not have, and never had, jurisdiction in relation to the decision of the Tribunal. 9 In the result, as previously indicated, the appeal must be dismissed with costs. I would, however, vary the orders of Scarlett FM to dismiss the application for want of jurisdiction. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.