Applicant S208 of 2003 v Minister for Immigration and Citizenship

[2007] FCA 809

FEDERAL COURT OF AUSTRALIA

Applicant S208 of 2003 v Minister for Immigration & Citizenship
[2007] FCA 809

APPLICANT S208 of 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 573 OF 2007

MARSHALL J
25 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 573 OF 2007

BETWEEN:

APPLICANT S208 of 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	25 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.

2. The applicant pay the first respondent’s costs of the application on an indemnity basis.

3. The applicant must not institute any proceeding in the Federal Court of Australia related to his protection visa application lodged on 21 March 1996 without leave of the Court. 

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 573 OF 2007

BETWEEN:

APPLICANT S208 of 2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	25 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for leave to appeal from a judgment of the Federal Magistrates Court given on 19 March 2007.  The Federal Magistrate refused to grant the applicant leave to file an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent Minister not to grant the applicant a protection visa.   

2. The applicant, who is a citizen of Bangladesh, arrived in Australia on 22 February 1996.  He applied for a protection visa on 21 March 1996, claiming to fear persecution in Bangladesh by reason of his political opinion.  The delegate refused that application on 16 January 1997.  The applicant sought a review of that decision. On 15 January 1999, the Tribunal handed down its decision affirming the delegate’s decision not to grant a protection visa.

3. The applicant joined the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 representative proceedings. On 25 November 2002, orders were made by Gaudron J which resulted in the applicant ceasing to be a represented party in those proceedings when, on 22 May 2003, he commenced his own proceeding in the High Court of Australia. The proceeding was remitted to this Court. On the 4 November 2005, Bennett J refused the application for an order nisi (Applicant S208 of 2003 v Refugee Review Tribunal [2005] FCA 1563). An application for leave to appeal from that judgment was dismissed by Wilcox J on 8 December 2005 under s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) because the applicant failed to attend the hearing (see Applicant S208 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1722).

4. The applicant then applied to Federal Magistrates Court for review of the Tribunal’s decision not to grant him a protection visa.  On 12 April 2006, that application was dismissed as an abuse of process (see Applicant S208 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FMCA 576). The Federal Magistrate ordered that the applicant be restrained from filing any application for review of the decision of the Refugee Review Tribunal made on 15 January 1999 at any Registry of the Federal Magistrates Court without leave.

5. On 24 April 2006, the applicant filed in this Court an application for leave to appeal the Federal Magistrate’s judgment.  On 14 June 2006, Moore J dismissed that application because the applicant did not appear at the hearing (see Applicant S208 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 864). The applicant then filed an application for special leave in the High Court of Australia, which was also dismissed (see Applicant S208 of 2003 v Minister for Immigration and Multicultural Affairs [2007] HCATrans 32).

6. On 1 March 2007, the applicant filed an application in the Federal Magistrates Court seeking review of the Tribunal’s decision, without obtaining leave.  The Federal Magistrate described the proceeding as “a most egregious abuse of process” and continued “I propose to dismiss the application, first, because there is no jurisdiction.  Secondly, because the application is an abuse of process, and third, I propose to refuse leave to file the application” (see Applicant S208 of 2003 v Minister for Immigration and Citizenship [2007] FMCA 416 at [9]).

7. On 4 April 2007, the applicant filed an application for leave to appeal to this Court.  In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which he states:

   GROUND

   The appellant claims that he has been denied procedural fairness at the time of assessment of claims of his protection visa application because the Tribunal was biased and applied some technic for testing my credibility which the Tribunal already had in its mind that it used those technics to reject the applicant’s claims and the style of asking question and trying to get answer were totally under its control to get its expected answer and under that circumstance every claimant will get same result like this applicant.  The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision. 

The draft notice of appeal also states “the Tribunal decision was infected by jurisdictional error…including incorrect interpretation of the applicable law” and asserts that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).

1. The applicant did not obtain the leave required for the Court below to hear his application.  As no leave was granted, there was no proper application before that Court.  Accordingly, the application was correctly dismissed as an abuse of process. The application for leave to appeal must be dismissed as the proposed appeal has no prospect of success.  The applicant must pay the first respondent’s costs of the application on an indemnity basis.  I will also order that the applicant must not institute any proceeding in the Federal Court of Australia related to his protection visa application lodged on 21 March 1996 without leave of the Court. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        25 May 2007

The applicant represented himself.
Counsel for the first respondent:	Mr A Markus
Solicitor for the first respondent:	Australian Government Solicitor
Date of Hearing:	25 May 2007
Date of Judgment:	25 May 2007