CZAH v Minister for Immigration
[2005] FMCA 1356
•9 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAH v MINISTER FOR IMMIGRATION | [2005] FMCA 1356 |
| 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 Act1958 (Cth), s.477 |
| Applicant NATI v Minister for Immigration and Multicultural Affairs [2004] FMCA 843 SZBMLv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 SZBMLv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 |
| Applicant: | CZAH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | CAG 22 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 9 August 2005 |
| Delivered at: | Canberra |
| Delivered on: | 9 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Advocate for the Respondent: | A Chand |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 19 May 2005 be dismissed as incompetent.
The applicant to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $1,200.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 22 of 2005
| CZAH |
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 17 June 2003 which affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. On 19 May 2005 an application was filed in this Court seeking judicial review of the Tribunal’s decision.
The matter has previously been before the Federal Court, the Full Federal Court and the High Court in 2004 and 2005 (NATF v MIMIA).
The claim for protection is summarised in the decision of the Full Court dated 13 August 2004:
The appellant [the applicant] is a citizen of Bangladesh who claims a fear of persecution for reason of his religion. The appellant claims he is an ‘Ahmadi’ or a ‘Ahmadiyya’ Muslim and that when he was living in Bangladesh he was targeted for brutal treatment by (the majority) Sunni Muslims.
The Full Court found:
The RRT came to the conclusion that the appellant is an impostor, finding that it was confident that the appellant is not an Ahmadi Muslim. Whether or not the RRT accepted the appellant's claim in that respect was a factual matter for the RRT to determine. The RRT’s finding was one which was open to it for the reasons which it gave.
In any event, the RRT found that even if the appellant was an Ahmadi Muslim he would still not face a real chance of persecution in Bangladesh.
Further, the Full Court said:
In the light of the RRT's factual findings, the appellant's application for a protection visa was bound to fail as his claim to refugee status was dependent entirely upon his religion being that of an Ahmadi Muslim, and on persons of that religion being persecuted in Bangladesh.
The history of the applicant's attempt to have this decision judicially reviewed is set out in the annexures to the affidavit of 30 June filed for the respondent. On 9 July 2003 the applicant sought judicial review in the Federal Court. That application was dismissed by Gyles J on
6 February 2004. On 25 February 2004 the applicant appealed to the Full Court. The appeal was dismissed on 13 August 2004. On
2 September 2004 the applicant sought special leave to appeal from the High Court which was dismissed by the High Court on 21 April 2005.
On 19 May 2005 the applicant sought to come again before this Court. I note that the grounds of application are not particularised in any way. In some respects the grounds are a repetition of those sought to be agitated before the Federal Court and which was rejected.
The first question that I have to consider is whether the application before me is competent. Section 477(1A) of the Migration Act1958 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 notification of the decision.
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.
Clearly the application filed on 19 May 2005 is well outside the 28 day period for a decision of the Tribunal in June 2003. However, the restriction on the length of time for filing applications is limited to privative clause decisions as defined in section 474. The question is whether the Tribunal decision is a privative clause decision. The Minister contends that the decision is and that the time limits in section 477 of the Act apply.
I have already referred to the history of proceedings concerning this application. In his reasons at first instance Gyles J makes it clear that there is no jurisdictional error in the Tribunal decision. At paragraph 5 his Honour says:
Bearing in mind the lack of any jurisdictional error, there is no necessity to be concerned about the effect of s 474 of the Migration Act 1958 and in my view the applicant fails to establish a case. It is inevitable that the application is to be dismissed.
In the Full Court, Beaumont, Merkel and Hely JJ said:
No error has been demonstrated in the findings of the primary judge.
In the High Court, McHugh J sitting with Heydon J said:
The Refugee Review Tribunal rejected the applicant's claim that he was an “Ahmadi”, or Ahmadiyya Muslim. Taking into account the unexplained irregularities in the applicant's evidence, the Tribunal concluded that he was an “impostor”. The Tribunal further found that even if the applicant were an Ahmadi Muslim, he did not face a real risk of persecution in his country of nationality, Bangladesh. The Federal Court held that these matters of fact were entirely for the Tribunal to decide.
The applicant does not seek to agitate any matters of law, but again challenges the Tribunal's conclusions of fact.
The application does not raise any question of law.
The application for special leave is dismissed.
I requested the applicant on a number of occasions to tell me how this Court had jurisdiction in this matter. Clearly he was concerned with the findings of the Tribunal. The applicant was, in essence, seeking to have this Court engage in merits review, something I explained that the Court was not empowered to do.
More importantly, the findings of a single judge in the Federal Court confirmed on appeal by the Full Federal Court and the High Court were that the decision of the Tribunal in June 2003 did not contain any jurisdictional error. It was thus a privative clause decision.
It follows that the time limit on applications to the Court set out in s.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 application to overcome that incompetence.
The approach that I have adopted above is that taken by Driver FM in SZBMLv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 confirmed by Bennett J ([2004] FCA 1195) and followed by myself in Applicant NATI v Minister for Immigration and Multicultural Affairs [2004] FMCA 843.
I therefore find that the application is incompetent and that it should be summarily dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 24 September 2005
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