Applicant NATI v Minister for Immigration and Multicultural Affairs

[2004] FMCA 843

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATI of 2002 v MINISTER FOR IMMIGRATION [2004] FMCA 843

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory application – protection visa – application out of time – frivolous or vexatious, abuse of process – privative clause – application incompetent – interlocutory application allowed – application dismissed.

Migration Act 1958 (Cth)

NATI v MIMIA [2003] FCA 573
NATI v MIMIA [2003] FMCA 143
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBML v MIMIA [2004] FCA 1195
SZBML v MIMIA [2004] FMCA 431
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NADR v MIMIA (2002) 124 FCR 465

Applicants: APPLICANT NATI of 2002

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2697 of 2004

Delivered on: 13 October 2004

Delivered at: Sydney

Hearing date: 13 October 2004

Judgment of: Mowbray FM

REPRESENTATION

Advocate for the Applicant: In person

Advocate for the Respondent: Ms K Howey

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application be summarily dismissed as incompetent.

2. The applicant pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2697 of 2004

APPLICANT NATI of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from the transcript.

2. The matter before me is an application by the Minister, the respondent, for the summary dismissal of proceedings on the basis that those proceedings are frivolous or vexatious, or otherwise an abuse of process.

3. The background to this matter is set out in the reasons for the decision of Conti J on 6 June 2003 in NATI v MIMIA [2003] FCA 573:

   1.        … The appellant applied for the protection visa on 16 February 2000. The delegate's decision refusing the visa was made on 6 March 2000. The appellant applied to the Tribunal for review on 20 March 2000. The Tribunal held a hearing on 11 July 2002 and handed down its decision on 6 August 2002.

   2.        The appellant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to have been a prominent member of the student wing of the Bangladesh National Party (the BNP) and to have been assaulted and made the subject of false charges by members of the rival Awami League. Shortly before the Tribunal hearing he also claimed to have been assaulted by the Awami League or the police in Bangladesh on numerous occasions and to also fear harm from members of the BNP itself

   3.        The Tribunal found that the appellant was not a credible witness and had fabricated his claims. The Tribunal noted that the appellant had only applied for a protection visa in Australia after the cancellation of his student visa and found the appellant's claims made shortly before the hearing were fabrications to take into account the change of government in Bangladesh in 2001 whereby the BNP was elected to power. The Tribunal rejected the appellant's claims to fear the BNP on the basis of independent country information. The Tribunal also rejected the appellant's previous claims to fear the Awami League both on the basis that the appellant was not credible and on the basis of independent country information that the courts in Bangladesh were independent and that the appellant could access state protection in Bangladesh against the political violence he claimed to fear.

4. The background is also set out in more detail at paragraphs 2 to 8 in the decision of Barnes FM on 20 March 2003 in NATI v MIMIA [2003] FMCA 143.

Litigation history

1. The history of the litigation is set out in the respondent's submissions:

   2         On 16 February 2000, the applicant lodged an application for a Protection Visa (Class XA).  The application was refused by a delegate of the respondent on 6 March 2000. 

   3.        On 6 August 2002, the Refugee Review Tribunal (Tribunal) affirmed the delegate's decision not to grant the visa. …

   Previous Federal Magistrates Court proceedings

   4.        On 29 August 2002, the applicant applied to the Federal Court for review of the Tribunal's decision (Previous Application).  The applicant claimed that the Tribunal ignored relevant evidence, was affected by actual bias and breached the rules of procedural fairness. [On 23 September 2002 Jacobson J transferred this application to the Federal Magistrates Court].

   5.        On 20 March 2003, the Previous Application was dismissed with costs by Barnes FM.

   …

   Appeal to the Full Federal Court

   7.        On 8 April 2003, the applicant appealed the decision of the Federal Magistrates Court to the Federal Court.  The notice of appeal set out the grounds of appeal as follows:

   (a)the Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903;

   (b)the case was very similar to the High Court judgment in Muin v RRT; Lie v RRT [2002] HCA 30.

   8.        At the hearing of the Full Court Appeal on 6 June 2003, Conti J concluded that there was no reviewable error in the decision of either the Magistrate or the Tribunal.  Accordingly, the appeal was dismissed with costs.

   First application to the High Court for special leave

   9.        On 3 July 2003 the applicant filed an application for special leave to appeal the decision of Conti J to the High Court.

   10.      On 21 January 2004, the applicant's special leave application was deemed abandoned due to the applicant's failure to comply with the provisions of Order 69A rule 6(1) of the High Court Rules.

   Second Application to the High Court for special leave

   11.      On 2 February 2004, the applicant filed another application for special leave to appeal to the High Court.

   12.      On 9 August 2004, the second special leave application was abandoned due to the applicant's failure to comply with the provisions of Order 69A rule 6(1) of the High Court Rules.

   Present Federal Magistrates Court proceedings

   13.      On 31 August 2004, the applicant filed an application for review of the Tribunal's Decision in this Court.

2. This application sets out the following grounds:

   The tribunal made his decision in bad faith.  The tribunal deprived me of the natural justice.  The tribunal denied the evidentiary proof of my claim.  The tribunal's decision did not reflect the material facts of my claim.  The tribunal has given a decision, which was preset in the back of it’s mind.  The tribunal mixed up many facts with this decision which affected the decision.  The tribunal concentrated in particular fact, while ignored many other facts in this condition.  The tribunal make  up his mind without any inquiry regarding my claim  and he did not believe my genuine convention based refugee claim.  I will provide more details of grounds later.  I refer plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003).

Is the current application competent

1. At the outset of the hearing I raised the question whether I had jurisdiction to hear this application.  Section 477(1A) provides:

   An application to the Federal Magistrates Court under section 483A for:

   (a) a writ of mandamus, prohibition or certiorari; or

   (b) an injunction or a declaration;

   in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.

2. Subsection (2) provides:

   The Federal Court or the Federal Magistrates Court must not make an order allowing or which has the effect of allowing an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.

3. Clearly the application filed on 31 August 2004 was outside the 28 day limit as the Tribunal’s decision was handed down on 6 August 2002.  The restriction on the length of time for filing applications is limited to privative clause decisions as defined in section 474. 

4. I referred the parties to the decisions of Driver FM in SZBML v MIMIA [2004] FMCA 431 and of Bennett J which affirmed Driver FM’s decision on appeal ([2004] FCA 1195). I then adjourned the Court to allow both parties to read the decisions and also to enable an interpreter to arrive to assist the applicant.

5. At the hearing I had the respondent's submissions before me as well as its application to have the matter dismissed as incompetent. The grounds for dismissal are that the proceedings are frivolous or vexatious or otherwise an abuse of process and also because the application is out of time.  The respondent contends that the decision is a privative clause decision because there is no apparent jurisdictional error in the decision. The respondent noted in particular that the applicant’s grounds or contentions are not spelt out and are vague and asserted in the broadest of terms.

6. The respondent also contends that the effect of the decisions of Conti J and Barnes FM are that the Tribunal decision was not affected by jurisdictional error.  The decision is thus a privative clause decision and I am bound to follow the decision on appeal of Conti J.

7. The applicant placed before the Court a document headed “Applicant's Argument for Competency” filed 11 October 2004.  In summary, this document seeks to re-litigate concerns about breaches of natural justice and failure to consider relevant evidence.  Part of this document refers to what might be broadly called the Muin point.

8. At the hearing the applicant requested an adjournment to enable him to prepare written submissions and to obtain the assistance of a friend. 
   I rejected that application, bearing in mind that the applicant was provided with notice of today's proceedings at a Directions Hearing on 16 September 2004. The applicant had also provided written submissions to the Court.  Moreover, I was conscious of the fact this was the fifth time that an application by the applicant in relation to this Tribunal decision had been before a court.

9. I also noted that the applicant's claims, to the extent that they are able to be ascertained with any certainty, were very similar to those that had been before Barnes FM and Conti J.  The applicant repeated at the hearing that he had been denied natural justice but was not able to particularise his contention.  He claimed that he had now received documents which were relevant to any special leave application to the High Court, but was unable to provide any cogent reason why this matter should be re-litigated in this Court.

Jurisdiction

1. I only propose to deal with the matter of jurisdiction, rather than the other grounds for dismissal, as I have reached the view that this Court is not competent to hear the application.  It is unnecessary and, in Driver FM's view, probably inappropriate for the Court to make any rulings other than the ruling on jurisdiction. 

2. The jurisdictional issue arises because the applicant was notified of the decision of the Tribunal in 2002. The present application before the Court was filed on 31 August 2004. Obviously the passage of time between the notification of the Tribunal’s decision and the filing of the judicial review application exceeds 28 days, the period prescribed in section 477(1)A of the Migration Act 1958 (Cth) (the Act). The Court has no jurisdiction to extend that time limit. But as the Act is framed that time limit only applies to privative clause decisions. The decision is a privative clause decision if it is not infected by any jurisdictional error.

3. In her decision Barnes FM said:

   (22)     In summary then, no jurisdictional error or denial of procedural fairness has been established. The decision is a privative clause decision within section 474 of the Act. Nor does the material before the Court establish a failure to comply with or a breach of any of the so-called Hickman provisos. As no reviewable error has been established, it follows that the applicant's claim for relief must be dismissed.

4. Conti J in considering an appeal from the decision of Barnes FM said:

   (7)       Her Honour also noted that there was no basis to suggest that the Tribunal had committed any jurisdictional error or that the Tribunal was biased. …

   …

   (9)       As there is no arguable jurisdictional error in the Tribunal's decision it is strictly unnecessary to discuss the effect of plaintiff S157/2002 ….

5. I have already noted the grounds set out in the application and those that the applicant advanced in the additional document that he placed before the Court.  As I have indicated those grounds are broadly comparable to the ones which were considered by Barnes FM and Conti J.  In particular the applicant refers in a number of places to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. In paragraph 8 of his decision in this matter Conti J said:

   The reliance in the notice of appeal and the decision in Muin v The Refugee Review Tribunal (2002) 190 ALR 601 is misplaced as there has been no attempt to establish that any documents referred to in the delegates decision were not before the Tribunal or that the appellant was misled in any way by the letter which is set out in the green book at pages 58-59 and 64-65. The factual basis for the application in Muin accordingly does not exist (NADR v MIMIA [2002] FCAFC 293).

6. I note also that a number of the documents filed by the applicant contain internal inconsistencies, generalised allegations and appear to have been prepared for other proceedings and not to relate to these particular proceedings.  For example, some refer to sections of the Act which have long since been repealed.

7. Nothing that has been said or put by the applicant in writing gives me any cause to believe that I would reach a different decision from that of Barnes FM and Conti J.

8. In my view I am strictly bound by the decision of the Federal Court and I must therefore follow it.  The effect of that decision is that the decision of the Tribunal is a privative clause decision. 

9. It follows that the time limit on applications to the Court set out in section 477 of the Act applies.  The present application was not made within that time limit and is therefore incompetent.  There is no basis on which I can enlarge the time for the application to overcome that incompetence. 

10. The order of the court will be that the application be summarily dismissed as incompetent. The interlocutory application of the respondent is upheld.

11. The Minister also sought an order that would prevent the applicant from filing any further applications in this Court in relation to the decision of the Tribunal handed down on 6 August in 2002.  I decline to do so at this stage but I allow the Minister the opportunity of raising it again in the Court if the Minister wishes.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Kelisiana Thynne

Date: 10 January 2005