CZAF v Minister for Immigration
[2005] FMCA 1488
•19 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1488 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – privative clause – repeat application to the Court – application out of time – application incompetent – application dismissed. |
| Migration Act 1958 (Cth), s.477 |
| Applicant NATI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 843 SZBMLv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 SZBMLv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 278 |
| Applicant: | CZAF |
| First Respondent: | MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 20 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 19 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2005 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Advocate for the First Respondent: | Mr Chand |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Tribunal be joined as second respondent.
The application filed on 9 May 2005 be dismissed as incompetent.
The applicant pay the first respondent’s costs fixed in the sum of $2,550.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAG 20 of 2005
| CZAF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal made on 19 November 2002 and handed down on 12 December 2002.
The applicant has claimed that he has a well founded fear of persecution for a Convention reason if he were to be returned to Bangladesh.
He refers to certain assaults which he claims were made upon him in 1999. He fears retribution from certain parliamentary members and he claims that he was attacked by members of the Awami League and targeted by Muslim fundamentalists and high ranking Awami League leaders. He says that these attacks arose from his known rejection of Islam and his entry of certain stamps depicting nude people into an exhibition. According to the applicant the stamps were intended to show that Islam stopped people from doing good deeds and should be rejected as a religion.
The history of the matter can be stated briefly. Following the Refugee Review Tribunal decision the applicant filed an application for review in the Federal Court on 8 January 2003. This was transferred to the Federal Magistrates Court on 12 February 2003. The application was dismissed on 24 July 2003 and appealed to the Federal Court where the appeal was dismissed by Gyles J on 14 November 2003. An application for special leave to the High Court was deemed abandoned on 8 June 2004. A second application for special leave was dismissed on 21 April 2005.
On 9 May 2005 the applicant filed a new application for review in this Court. This application contained 10 grounds without any particulars. Despite consent orders made on 26 May 2005 that the applicant file and serve any amended application by 29 July 2005, he has failed to do so. I note that this was not obligatory. It was merely a direction that any amended application be filed by that date.
On 12 July 2005 the Minister filed an application seeking to have the
9 May 2005 application struck out as being out of time. The question then is whether the 9 May 2005 application is competent.
I have examined the two submissions made by the applicant, one dated 4 August 2005 and the other filed on 12 September 2005. I received them both for the first time at the hearing. The submission of August 2005 briefly mentions that the applicant objected to the respondent’s notice of motion application. The one filed on 12 September 2005 is headed "Applicant’s Submission for Competency" but does not address any of the issues which are relevant.
The submissions do not in substance address the question of whether the application was within time. I have considered both but they have not been helpful.
In its decision on 21 April 2005 the High Court, constituted by McHugh and Heydon JJ, said:
The Federal Magistrates Court found no jurisdictional error, failure to do substantive justice or procedural unfairness.
The Federal Court dismissed an appeal on the ground that no error in the reasoning of the decision of the Federal Magistrates Court had been demonstrated.
The applicant's special leave application complained of errors of law, a failure to review the evidence and procedural unfairness. The applicant also relied on Muin v Refugee Review Tribunal (2002) 76 ALJR 966 190 ALR 601, but did not demonstrate the necessary factual basis.
An appeal has no prospects of success.
The Federal Magistrates Court, the Federal Court and the High Court have found that the Tribunal has not fallen into jurisdictional error. Accordingly in my view the Tribunal's decision is a privative clause decision under s.474 of the Migration Act 1958 (Cth).
As such, s.477(1A) requires that an application to this Court must be made within 28 days of notification of the Tribunal decision. In this case the application was made in May 2005. This was well after the handing down of the decision in December 2002 and certainly outside the 28 day period.
Having regard to the decisions in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 and FCA 1195, Applicant NATI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 843 and SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 278,
I am of the view that this Court is not competent to hear the application.Under s.477(2) I cannot enlarge the time for an application to overcome incompetence.
It is unnecessary therefore for me to consider the other bases on which the Minister seeks to have the matter summarily dismissed.
In the circumstances the application must be dismissed as incompetent.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 11 October 2005
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