CZAK v Minister for Immigration
[2006] FMCA 108
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 108 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – repeat application to Court – privative clause decision – application out of time – no jurisdiction – application dismissed – applicant not to file without leave of the Court. |
| Migration Act 1958 (Cth), s.477 |
| NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 260 NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 632 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: | CZAK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 25 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 11 November 2005 |
| Delivered at: | Sydney |
| Delivered ex tempore: | 11 November 2005 |
| Written Reasons: | 31 January 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Advocate for the First Respondent: | Mr Chand |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as second respondent.
The application filed on 24 May 2005 be dismissed as incompetent.
The applicant not file any future proceedings in this Court relating to the Refugee Review Tribunal decision of 19 February 2003 and handed down on 12 March 2003 without leave of the Court.
The applicant pay the first respondent's costs fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAG 25 of 2005
| CZAK |
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 February 2003 and handed down on 12 March 2003.
The applicant who claims to be a citizen of Bangladesh asserts that he has a well-founded fear of persecution for a Convention reason if he were to be returned to Bangladesh. In the High Court in NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 260, earlier proceedings of the applicant’s, McHugh J described the applicant's claims as follows:
The applicant claims to have a well-founded fear of persecution due to his membership of the Jatiya political party in Bangladesh. He says that he has been the victim of assaults and threats on his life from activities of other political organisations. He further claims that he has been falsely accused of a number of offences, and will not be accorded a fair trial if he returns to Bangladesh.
The Tribunal found that the Jatiya party is now in a peaceful coalition with the ruling Bangladesh National Party and that the judicial system is sufficiently independent to afford the applicant a fair trial upon his return.
The history of this matter can be stated briefly. Following the decision of the Refugee Review Tribunal of 19 February 2003 an application was filed in the Federal Court on 7 April 2003 seeking judicial review. On 17 June 2003 Hely J dismissed that application. The applicant appealed to the Full Court and on 26 November 2003 the appeal was dismissed. Following an application for special leave to appeal to the High Court, on 27 April 2005 the High Court found that the application was out of time and dismissed the special leave application.
In his decision on 17 June 2003 Hely J said in NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 632 at [19]:
The applicant has not demonstrated any error that could lead to the conclusion that the RRT failed to exercise or exceeded its jurisdiction, or that it had breached any of the Hickman provisos.
The Full Federal Court dismissed an appeal from Hely J's decision and in the High Court McHugh J said:
… nothing in the reasons of the courts below suggests that their decisions were attended by any error of law. …An appeal in this matter would have no prospect of success…
The Federal Court, the Full Federal Court and the High Court have found that the Tribunal has not fallen into jurisdictional error.
The Tribunal's decision is a privative clause decision under s.474 of the Migration Act 1958. As such s.477(1A) requires that an application to this Court must be made within 28 days of the notification of the decision. In this case the application was made on 24 May 2005, over two years after the handing down of the decision on 12 March 2003 and clearly 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 this incompetence.
As this Court has no jurisdiction to consider the application filed on
24 May 2005 it is therefore unnecessary 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 eleven (11) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 31 January 2006
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