CZAI v Minister for Immigration - [2005] FMCA 1358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CZAI v MINISTER FOR IMMIGRATION

[2005] FMCA 1358

MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – privative clause – repeat application to the Court – application out of time – application incompetent – indemnity costs – application dismissed.

Migration Act1958, 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:

CZAI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

CAG 23 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

Counsel for the Respondent:

Avinesh Chand

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 19 May 2005 be dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $1,700.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 23 of 2005

CZAI

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 11 March 2003 and handed down on 3 April 2003. An application was filed in this Court on 19 May 2005 for judicial review of the Tribunal’s decision.
The matter has previously been before the Federal Magistrates Court, the Federal Court and the High Court (SZAKU v MIMIA).
The current application contains no particulars and simply lists nine grounds which appear to follow a formulaic approach commonly found in these applications. The errors that the applicant refers to in his outline of submissions appear to be really disputing factual findings of the Tribunal. As I explained to the applicant, this Court has no role in reviewing afresh the fact finding of the Tribunal.
In the reasons of March 2004 of Driver FM, his Honour outlines the applicant’s fears from submissions before him:
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the Freedom Party (FP), and to have been assaulted in January 2001 and had false charges brought against him by members of the rival Awami League. He claimed to have then gone into hiding. He claimed to have been a member of a drama group since 2000, and was able to obtain a visa to come to Australia for this reason. …
The RRT found the applicant was not credible, and had fabricated his claims …. The RRT noted that he demonstrated very little knowledge of the FP at the hearing, and found that the applicant's claim to be a member of the FP had been fabricated …. Similarly, the RRT regarded the applicant's claims as to being wanted by the Bangladesh authorities as inconsistent with his ability to leave Bangladesh legally on his own passport.
The Tribunal’s decision affirming that of the delegate was handed down on 3 April 2003. On 28 April 2003 the applicant sought judicial review in the Federal Magistrates Court. A number of the grounds for that application were very similar to those before this Court. Driver FM dismissed the application on 24 March 2004. The applicant appealed to the Federal Court on 7 April 2004, and on 8 July 2004 Conti J dismissed the appeal. The applicant then sought special leave to appeal from the High Court on 30 July 2004 which was dismissed on 21 April 2005. As mentioned above, the applicant comes before this Court with an application filed on 19 May 2005.
The first question is whether the current application is competent, that is, whether this Court has jurisdiction to hear it.
Section 477(1A) of the Migration Act 1958 (Cth) 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 subsection (1)(a) outside the period specified in that subsection.
Clearly, the application filed on 19 May 2005 is well outside the 28 day time limit for seeking judicial review of a decision of the Tribunal handed down in April 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. In his decision in March 2004 Driver FM said at [8]:
There is no jurisdictional error in the decision of the RRT.
In his decision on appeal on 8 July 2004 Conti J said at [7]:
In the result of course Driver FM held that no jurisdictional error had been established on the basis of the application made to the Court, and duly dismissed the same. I agree with his Honour….
In its reasons for decision in the High Court, 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 grounds that the applicant fabricated his claims.
The Federal Magistrates Court found that the application for review disclosed no reasonable cause of action and the Tribunal made no error of law or jurisdictional error. The Magistrate ordered the applicant to pay indemnity costs of $4,500.
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 and ordered the applicant to pay indemnity costs from having appealed from such a emphatic finding below.
The applicant's special leave application complained of errors of law and procedural errors. The applicant also relied on Muin v the 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 application is dismissed.
When I asked the applicant to tell me how this Court obtained jurisdiction, he stated that he did not know the law and the powers of the Court. It was apparent to me that the applicant’s real concern was with the findings of fact made by the Refugee Review Tribunal.
It is clear and it has been expressly stated by the Courts that have previously considered this matter that no jurisdictional error has been demonstrated. The Tribunal's decision is thus a privative clause decision. I am bound to follow the decision on appeal of Conti J and of the High Court.
Accordingly 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 that time limit to overcome the 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.
The application is therefore summarily dismissed as incompetent.
The second question is whether a costs order should be made and, if so, whether it should be an indemnity costs order. I have examined the history of this litigation. I note that both Driver FM and Conti J awarded costs on an indemnity basis, essentially because they regarded the applications before their courts as an abuse of process.
As I have pointed out during my judgment, the application before this Court contains in a formulaic fashion nine grounds without any supporting details or particulars. I have also noted that the applicant’s earlier applications had been up to and dismissed by the High Court.
In my view, this is an appropriate case to make an award of costs on an indemnity basis.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Helen Athanasiadis

Date: 24 September 2005