Applicant NATC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1614

FEDERAL COURT OF AUSTRALIA

Applicant NATC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1614

APPLICANT NATC OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ORS
NSD 1396 of 2004

ALLSOP J
6 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1396 of 2004

BETWEEN:

APPLICANT NATC OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DINOO KELLAGHAN
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

6 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

2.The application for the order nisi in relation to constitutional writs be refused.

3.The applicant pay the named first, second and third respondents’ costs.

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 1396 of 2004

BETWEEN:

APPLICANT NATC OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DINOO KELLAGHAN
THIRD RESPONDENT

JUDGE:	ALLSOP J
DATE:	6 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application remitted from the High Court, being an application for constitutional writs under s 75(v) of the Constitution. The matter came before me on 2 November 2004 having been remitted to this Court by an order of Heydon J on 18 August 2004.

2. On 2 November 2004 I made the following orders:

   1.Grant leave to the respondents to file in Court a notice of objection to competency of the appeal.

   2.On or before 9 November 2004, the respondent Minister file and serve written submissions in support of the notice of objection to competency.

   3.On or before 30 November 2004 the applicant file and serve:

   (a)written submissions on the application; and

   (b)an affidavit identifying what documentary evidence the applicant wishes to rely upon, annexing any available documents and if documents are not available identifying what he seeks to prove by the documents to be obtained.

   4.The application and hearing as to competency be set down for hearing to 2.15 pm on 6 December 2004.

   5.Grant leave to applicant to make an application for adjournment on that day.  Such an application to be supported by evidence.

   6.The Minister to provide to the Court and the applicant before hearing any documents by way of appeal or application books to be tendered at hearing.

3. Order 3(b) was made because the applicant indicated to me that he wished to adduce further evidence and needed time to obtain that evidence from Bangladesh.  No affidavit was filed in conformity with order 3(b).  However, some submissions were filed entitled “Applicant's Argument for Competency”.  Paragraph 24 of those submissions was entitled, "My authority of the documents are as follows".  There were then four types of documents identified in the following terms:

   (a)News paper article regarding present political situation in Bangladesh. [sic]

   (b)Copy of very recent judgement against my political leaders. [sic]

   (c)Certificate from my party leader.

   (d)And supporting documents to establish my judicial review application.

4. All of those documents were said in court today by the applicant, in effect, to be recently contemporaneous documents which would go to support the genuineness and correctness of the claims for persecution based on risk to the applicant in Bangladesh. 

5. No legitimate ground has been identified for adjourning the application. This Court performs the same task as would be performed by the High Court in a s 75(v) application. That is, it must examine the exercise of executive power of the officer of the Commonwealth to ascertain whether that officer, in this case the Tribunal, acted in conformity with law. This Court does not sit as a first instance trial court deciding whether or not the applicant has grounds for a protection visa. It reviews the exercise of administrative or executive power by the Tribunal and will set aside any such decision if there is jurisdictional error displayed by the Tribunal's reasons. The documents, identified are irrelevant to the task before the Court.

6. No basis having been made out for an adjournment, the application for an adjournment is refused.

   [The application was then heard.]

7. The first respondent, the Minister, has filed a notice of objection to competency which is in the following terms:

   1.The Application is an application to the High Court for writs of mandamus and certiorari and injunction in respect of a decision of the Refugee Review Tribunal dated 11 July 2002 and handed down on 1 August 2002 (Decision).

   2.The Decision is a “privative clause decision” as that term is defined in s 474(2) of the Migration Act 1958 (Act):  NATC v MIMIA [2003] FCA 588 (29 May 2003), NATC of 2002 v MIMIA [2004] HCA Trans 223 (18 June 2004).

   3.Section 486A of the Act relevantly provides that applications for writs of mandamus and certiorari and injunction in respect of a privative clause decision must be made to the High Court within 35 days of the actual notification of the decision.

   4.The Decision sought to be challenged in these proceedings was notified to the Applicant on 1 August 2002.

8. Apart from the fact that the subject of complaint is a decision of the Tribunal over two years ago, the chronology of events reveals certain other relevant considerations.  On 26 August 2002, that is, a little over three weeks after the handing down of the Tribunal's decision, the applicant commenced proceedings in this Court for review of the Tribunal's decision.

9. That application for review of the Tribunal's decision having been made, a Judge of this Court, on 23 September, ordered that the proceedings be transferred to the Federal Magistrates Court. A Federal Magistrate heard and decided the matter on 31 January 2003.  The matter was appealed to this Court.  The matter was heard by a judge of this Court exercising the appellate jurisdiction of the Federal Court.  Judgment was given on 29 May 2003.  The appeal was dismissed with costs.  It is important to understand that on that occasion the applicant relied upon the High Court decision of Muin v Refugee Review Tribunal (2002) 190 ALR 601. The Judge of this Court who heard the appeal said that reliance on Muin was misplaced because there had been no attempt to establish by evidence that any document referred to in the delegate's decision was not before the Tribunal, or the applicant was in any way misled by the relevant correspondence.

10. An application for special leave was made to the High Court.  That matter came on for hearing a year later, in June 2004.  The High Court dismissed the application for special leave on 18 June 2004.  A little over three weeks later the applicant filed an application for constitutional writs in the High Court on 14 July 2004.

11. Pursuant to orders made by me on 2 November, the applicant has filed submissions entitled, “Applicant's Argument for Competency”.  Those submissions are five pages long.  They once again refer to the High Court's decision in Muin and Lie.  They traverse the factual background of the applicant identifying various complaints about the treatment of the claim by the Tribunal.

12. Briefly, by way of background, the applicant is a citizen of Bangladesh who arrived in Australia on 8 November 1999.  He lodged an application for a protection visa on 29 November 1999.  He claimed that he feared persecution in Bangladesh for reason of his political opinion, being, he said, a member of the Freedom Party.  He claimed that he had been oppressed, beaten and made the subject of false claims by supporters of the Awami League.

13. The applicant was invited to attend a hearing of the Tribunal.  He failed to attend that hearing and the Tribunal proceeded to make a decision without taking any further action to allow or enable the applicant to appear before it.  In its reasons, the Tribunal rejected the claims of the applicant as being internally inconsistent.  Further, the Tribunal refused to accept that there was a real chance of persecution based in part on the country information. 

14. Importantly for present purposes, those issues have been litigated.  Mr Smith has read an affidavit of Ms Goodman of his instructing solicitors, which exhibits the papers and judgments in previous litigation of the applicant’s claims as well as the Tribunal's reasons.

15. Being an application before this Court on remittal from the High Court of Australia, O 51A r 5 of the Federal Court Rules provides for two alternative ways of dealing with this matter.  The first is that I make an order that subrule (1) not apply thereby dealing with the matter as an application for an order nisi requiring, as that would, that the applicant show some reasonable basis for the making of that order.  If there were an arguable basis and I were to make that order I would then proceed to deal with the matter on a final basis as to whether there was in fact jurisdictional error shown by the Tribunal. 

16. There has been no sufficient basis revealed to me why leave should be granted to extend any time that might be required of the High Court or Federal Court Rules but more importantly, there is no basis that appears from the papers why I should make an order nisi in circumstances where this matter has been the subject of full litigation on one previous occasion up to and including an application for special leave to the High Court.  Therefore, the course that I propose to take in one sense circumvents the question of competency.  I simply refuse the application for the order nisi. 

17. The proceedings have been commenced in a form which is irregular also.  The second respondent and third respondents, the members of the Tribunal, are respectively the Principal Member of the Refugee Review Tribunal and the member of the Review Tribunal who undertook the task of review.  The proper parties to the application should have been the Tribunal itself if it were to be joined in addition to the Minister.

18. The other bases for the objection to competency would require, on one view, a re-agitation of the issue as to whether or not there was jurisdictional error so as to ascertain the ultimate question at the end of that task as to whether this was a privative clause decision.  I do not propose to undertake that task. 

19. In all the circumstances, I am persuaded, indeed convinced, that on the material before me there is no basis for the re-agitation of these complaints.  They having been dealt with by the Court.  The application for writs should be dismissed and the applicant should pay the named first, second and third respondents' costs, if there be any in relation to the second and third respondents.

20. Therefore the orders of the Court are:

    1.The application for an order nisi is dismissed; and

    2.The applicant pay the respondents' costs.

21. In addition to the orders that I have made, the first respondent seeks a further order that the respondent not be permitted to file any further application seeking review of the relevant Tribunal's decision without the leave of the Court. Absent particular statutory or rule basis, that may be in effect an order in the nature of a vexatious litigant order. At the moment I am not prepared to make that order. I should say, however, that from the chronology I have identified, in my view, the re-litigation of the complaints against the Tribunal's decision which have had ventilation by federal courts under Chapter III of the Constitution once already should not occur.

22. If it be the case that the applicant makes another application to this Court, I would expect the Minister's representatives to forthwith bring the matter to the attention of the Duty Judge sitting in that week.  Other administrative consequences of applications being filed are within the power of the Minister and the Executive to deal with.  Therefore, I do not propose to make any further order other than those that I have indicated above.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             13 December 2004

The applicant appeared in person with the assistance of a Bengali interpreter.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 December 2004
Date of Judgment:	6 December 2004