CZAJ v Minister for Immigration
[2005] FMCA 1361
•10 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1361 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of India – privative clause – repeat application to the Court – application out of time – application incompetent – out of time – application dismissed. |
| Migration Act 1958 (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: | CZAJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | CAG 24 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 10 August 2005 |
| Delivered at: | Canberra |
| Delivered on: | 10 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 24 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 $1,300.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 24 of 2005
| CZAJ |
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 18 March 2004 and handed on 8 April 2004. On
24 May 2005 the applicant filed an application seeking judicial review in this Court of the Tribunal’s decision.
The applicant claimed protection on the grounds of political opinion, namely his involvement with the opposition party Congress I in India and the failure of police and authorities to protect him from harassment and abuse. When invited to attend a hearing by the Tribunal, he advised that he would not be attending and the Tribunal could make a decision without further notice.
The matter has previously been before the Federal Magistrates Court, the Federal Court and the High Court (SZDLO v MIMIA). The history is set out in the affidavit of Mr Chand and the annexures to that affidavit.
The applicant sought judicial review in the Federal Magistrates Court on 4 May 2004 by way of an application which contained the usual formula of grounds without any particulars. Nicholls FM dismissed the application on 7 October 2004. The applicant appealed on 19 October 2004. That appeal was dismissed by Moore J on 11 February 2005. Special leave to appeal in the High Court was sought on 28 February 2005 and was dismissed on 27 April 2005. This was followed by the applicant's new application in this Court on 24 May 2005.
On 1 July 2005, the respondent Minister filed a notice of motion and a supporting affidavit seeking to have the application dismissed on the ground, inter alia, that the application was incompetent as being out of time.
On 10 August 2005 the applicant sought to have the hearing of the notice of motion adjourned. Essentially the applicant stated that he was not prepared as the motion was originally to be heard on 24 August 2005 and had been brought forward to 10 August 2005. He wanted a few more months to prepare material with the assistance of a friend who was currently overseas. He would also be seeking further documents from India.
For reasons that I have already given, I rejected the applicant's request for an adjournment. He has had notice since 1 July 2005 that the Minister would be seeking to have his application dismissed because it was out of time. Furthermore, he has provided two submissions to the Court, one on 26 July 2005 and the other filed in court on 10 August 2005.
His application sets out eight grounds which are not particularised and follow a very familiar formula used by many applicants in this Court. Reference is made to the High Court decision in Plaintiff S157 of 2002vCth [2003] HCA 2 in support of those grounds. The grounds are similar to the grounds that he relied on when he first sought review in the Federal Magistrates Court in May 2004. On that occasion, he was required to provide amended grounds with fuller particulars and he failed to comply. In my view it would be futile to allow the matter to be adjourned to a future date.
The applicant also filed a document headed "Applicant's Argument for Competency" on 26 July 2005 which adds little to the application. Clearly someone with scant knowledge of the law has put this document together. It is a mishmash containing many errors and referring to non-existent provisions in the Migration Act 1958.
In addition the applicant tendered a document entitled “Applicant's Authorities and Reasons” which refers to a number of decisions and annexes some of these decisions. Again this is of no help to the Court. The applicant is ill-assisted by those who have advised him and put together these documents.
The question then is whether the Court has jurisdiction to consider the application filed on 24 May 2005.
Section 477(1A) of the Act 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.
Section 477(2) prohibits the Court from extending that period. However the restriction on the length of time for filing applications is limited to privative clause decisions as defined in section 474.
A decision that is not affected by jurisdictional error is a privative clause decision.
Therefore the question is whether the Tribunal's decision is a privative clause decision.
In his reasons on 7 October 2004 Nicholls FM stated at [15]:
I agree with the respondent's counsel that no question of jurisdictional error has arisen in these circumstances.
In his decision on appeal on 11 February 2005, Moore J said at [12]:
I dismiss the appeal. The appellant has failed to demonstrate that the Federal Magistrate made an error in dismissing the application. I have read the Federal Magistrate's decision and I have also read the decision of the Tribunal, and it does not appear to me that the Federal Magistrate made any error in concluding that the Tribunal had not made a jurisdictional error.
In the High Court on 27 April 2005, McHugh J with whom Heydon J agreed, said:
The applicant submits that the Tribunal's decision was attended by jurisdictional error, that the Tribunal did not take all relevant information into account and that the decision was affected by actual bias. As Moore J in the Federal Court correctly held, there is nothing in the Tribunal's reasons to support these claims.
The applicant has not raised any additional grounds before this Court that could support a successful appeal.
The combined effect of the decisions of the Federal Magistrates Court, the Federal Court on appeal and the High Court, is that the decision made by the Tribunal on 18 March 2004 and handed down on 8 April 2004, is not affected by jurisdictional error. The decision is therefore a privative clause decision. It follows that the time limitation on applications to the Court, which is stipulated in section 477 of the Act, applies.
Accordingly, as the application before me filed on 24 May 2005 was not made within that time limit it is 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.
In the circumstances the application is summarily dismissed as incompetent.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 24 September 2005
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