CZAG v Minister for Immigration
[2005] FMCA 1366
•10 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAG v MINISTER FOR IMMIGRATION | [2005] FMCA 1366 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – repeat application to the Court – privative clause decision – application out of time – application incompetent – application dismissed. |
| Migration Act 1958 (Cth), s.477 |
| NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 362 NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 269 NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 215 |
| Applicant: | CZAG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | CAG 21 of 2005 |
| Judgment of: | FM Mowbray |
| Hearing date: | 10 August 2005 |
| Delivered at: | Canberra |
| Delivered on: | 10 August 2005 |
REPRESENTATION
| For the Applicant: | Applicant in person by telephone |
| Advocate for the Respondent: | Mr Avinesh Chand |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed as incompetent.
The applicant pay the respondent's costs and disbursements of and incidental to the application fixed in the sum of $1,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 21 of 2005
| CZAG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
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 16 October 2002 and handed down on 11 November 2002.
An application was filed in this Court on 16 May 2005 seeking judicial review of the Tribunal’s decision. The application does not provide much detail of assistance to the Court.
The matter has previously been before the Federal Court, the Full Federal Court and the High Court (NAFD v MIMIA).
The Court had a letter from the applicant at the hearing in which he sought an adjournment because he was sick and living in Sydney. The letter was dated 2 August 2005 but received on 8 August 2005. It contained a telephone number and my associate attempted to contact the applicant on that number on 9 August 2005 without success. The applicant was able to be contacted on the day of the hearing between 9am and 10am. He was advised that he should provide the Court with a medical certificate by 3pm if he wished the Court to consider adjourning the matter, the hearing being set for 3.15pm.
No medical certificate was received at the time the hearing commenced at 3.35pm and there was no appearance from the applicant. However, the Court was able to contact the applicant by phone and he sought to have the matter adjourned to another day. He stated that he had a medical certificate but he had not yet been able to send it to the Court.
The respondent opposed the application for adjournment.
I refused that application on the basis that the applicant acknowledged that he had the respondent's application and the accompanying affidavit seeking to have the matter dismissed as incompetent. He was aware that the application of the Minister to have the matter dismissed would be heard on 10 August 2005. I also noted that the decision of the Refugee Review Tribunal had been reviewed by three other courts including the High Court.
The affidavit of Mr Avinesh Chand sworn on 11 July 2005 sets out the course of litigation in relation to the Tribunal decision. On 24 May 2003 Moore J dismissed an application for review in the Federal Court. On
26 November 2003 the Full Federal Court dismissed an appeal. Finally on 21 April 2005 McHugh and Heydon JJ dismissed an application for special leave to appeal in the High Court.The question before me is whether the Court has jurisdiction to hear the application filed on 16 May 2005.
Section 477(1A) of the Migration Act 1958 provides that an application in respect of a privative clause decision must be filed in this Court within 28 days of notification of that decision. Section 477(2) prevents the Court from extending that period. The restriction on the time for filing applications, however, is limited to privative clause decisions, as defined in section 474 of the Act.
The question then is whether the decision of the Tribunal is a privative clause decision. This in turn depends on whether the decision was infected by any jurisdictional or serious legal error.
In NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 362 Moore J said at [15]:
It is not apparent to me that the Tribunal's decision was infected by judicially reviewable legal error.
The Full Court in NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 269 said at [10]:
At the hearing of the appeal the appellant repeated some of the claims made to the Tribunal. Nothing he put to the Court is capable of suggesting jurisdictional error on the part of the Tribunal, nor that the primary judge erred in reaching the conclusion that he did.
In the High Court (NAFD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 215) McHugh J, with whom Heydon J agreed, said:
The Refugee Review Tribunal rejected the claim of the applicant, a Bangladeshi, for a protection visa on the ground that the applicant would no longer be of interest to his former political opponents, that whatever problems he had were local and could be avoided by relocation within Bangladesh and that his own party would not now turn on him for having left the country.
The Federal Court found no jurisdictional error and rejected the claim that the Tribunal's findings demonstrated actual bias.
The Full Court of the Federal Court dismissed an appeal on the ground that no error in the reasoning of the decision of the Federal Court had been demonstrated. …
An appeal has no prospects of success.
It is clear from the reasons of the Federal Court, the Full Federal Court and the High Court that the Tribunal decision was not affected by jurisdictional error. The decision is thus a privative clause decision. I am bound by the decisions of the High Court and of the Full Federal Court.
It follows that the time limit on applications to this Court set out in section 477 applies. There is no basis on which I can enlarge the time period to overcome this difficulty.
The application is therefore incompetent as being out of time and must be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 25 September 2005
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