(1) The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
(2) The applicant must pay the first respondent's costs in the sum of $600.
[2]
This is an application filed on 31 March 2009, which seeks judicial review under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal dated 23 October 2007 and handed down on 27 November 2007.
The validity of the Tribunal's decision has already been addressed in litigation under the same jurisdiction. Scarlett FM dismissed an application on 8 May 2008. His Honour considered that the applicant's claims of jurisdictional error were not made out, and that no other arguable case for jurisdictional error could be discerned. He held that the Tribunal's decision was a privative clause decision (see SZLUC v Minister for Immigration & Anor[2008] FMCA 625).
His Honour's judgment was upheld by Stone J on 26 August 2008. Her Honour held that Scarlett FM had correctly found that obligations under s.424A of the Migration Act had been met, and also considered that a further issue raised by the Court could not assist the applicant (see SZLUC v Minister for Immigration & Citizenship[2008] FCA 1319).
The applicant then sought special leave to appeal to the High Court of Australia, but this was refused by French CJ and Hayne J on 3 March 2009. Their Honours said that there was no reason to doubt the correctness of the decision of Stone J (see SZLUC v Minister for Immigration & Citizenship & Anor[2009] HCASL 30).
The present application seeks an extension of time under s.477(2) of the Migration Act, but it appears to me that this is not needed. The application was filed after the commencement of the Migration Legislation Amendment Act (No. 1) 2009 (Cth). The amendments to s.477 now impose a 35-day time limit on applications to the Court, which is measured from "35 days of the date of the migration decision". That period can be extended by the Court under new s.477(2) for any period of time, if it is in the interests of the administration of justice to make that order. The new time limit applies to all applications made after the commencement of the amendments, including those relating to earlier migration decisions (see Sch.2 cl.7).
There might appear to be ambiguity in relation to the application of the time limit arising from the transitional provision in cl.7(2):
7 Application
...
(2) If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of theMigration Act 1958, treat the date of the migration decision as the date of that commencement.
It is conceivable that Parliament might wish to deem an earlier date of commencement for challenges to old migration decisions, defined as being the actual date of that decision, so as to require the obtaining of an extension of time for any application not brought within 35 days of that date. However, this would give a retrospective effect to the new time limit, and clear language would be needed to identify such an intention.
I consider that probably the draftsmen intended that the date which is to be treated as having an artificial or deemed date is the date of the old migration decision, rather than the date of commencement of the new time limit for the purposes of applications relating to such decisions. Clause 7(2) therefore should be read as if it says "treat the date of the migration decision as being the date of that commencement".
This reading is more beneficial to applicants, and is confirmed by the explanatory memorandum for the amendments, in which cl.108 states:
108. However, if a migration decision is made before commencement, then the date of the migration decision is treated as the date of commencement for Schedule 2. That is, if a migration decision has been made before commencement and judicial review proceedings have not commenced before the commencement of Schedule 2, then the 35 day time period for applying for judicial review will start to run from the date of commencement of Schedule 2. The effect of this application provision will be to give all applicants who have a migration decision made before the date of commencement, the same time limits as applicants whose decisions are made on the date of commencement.
On this interpretation, the amendments opened up a 35 day window of opportunity to apply to this Court for review of an old migration decision, from the date of commencement on 15 March 2009 and ending on 21 April 2009. Applications may be brought after that date, but an extension of time will be required, and this may only be granted if the applicant satisfied the Court that this would be in the interests of the administration of justice. Such considerations include, at least, whether the applicant has provided an acceptable explanation for not availing himself or herself of the window of opportunity.
Since the present application was filed on 31 March 2009, it was therefore competent without the need for an extension of time, notwithstanding the obvious fact that the applicant must have received the Tribunal's decision many months ago.
However, the Minister has filed a response which has been served on the applicant with a supporting affidavit. This seeks the summary dismissal of the application as an abuse of process, or on the ground that it does not raise an arguable case for the relief claimed. I propose to deal with the Minister's application for summary disposal under r.44.12, although prima facie the application is also an abuse of process due to the previous litigation and its apparent lack of merit.
The application makes unparticularised contentions of denial of procedural fairness, and a failure by the Tribunal to consider "the four key elements of the Convention definition". Prima facie, as framed, it does not raise an arguable case for the relief claimed. Moreover, the contentions appear to have been raised in the earlier litigation, or should have been raised if they had any substance. The application appears doomed to failure on principles of res judicata or Anshun estoppel.
The applicant has not been able today to point to any reason why he should be allowed to re-litigate the validity of the Tribunal's decision. His two arguments were that he now has further documents supporting his refugee case, and that he thought that the earlier Tribunal had not allowed him enough time to get those documents. However, the obtaining of fresh evidence to support refugee claims can never provide in itself a ground for finding the Tribunal's decision to be invalid. The applicant's contentions about his opportunities to present his case to the Tribunal have already been addressed in the previous litigation.
In my opinion, the application does not raise an arguable case for the relief it claims and it is appropriate to dismiss the application today. I note that the intention of the Minister to seek that order has been, in my opinion, sufficiently foreshadowed to the applicant in a letter enclosing the response and affidavit relied upon.
[3]
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM