CZAL v Minister for Immigration
[2005] FMCA 1364
•10 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAL v MINISTER FOR IMMIGRATION | [2005] FMCA 1364 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – repeat application to Court – privative clause decision – application out of time – application incompetent – application dismissed. |
| Migration Act 1958 (Cth), s.477 |
| Applicant: | CZAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | CAG 26 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 10 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2005 |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Advocate for the Respondent: | Mr Avinesh Chand |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 24 May 2005 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 26 of 2005
| CZAL |
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 dated 14 April 2003. On 24 May 2005 an application was filed in this Court seeking judicial review.
The matter has previously been before the Federal Magistrates Court, the Federal Court and the High Court (SZAPT v MIMIA).
Broadly, the applicant's claims relate to his fear of persecution for reasons of his political opinion, namely his active role in and support of the Bangladeshi National Party. He also claimed a fear/harm from fundamentalist Muslims because he supported a well known Bangladeshi feminist, Taslima Nasreen. He further told the Tribunal that he was an artist and appeared in a group of musical performers known as the Boyati. The Tribunal disbelieved most of the applicant's claims.
The application to this Court lists nine grounds. The ninth only refers to a High Court decision and does not include any ground. The other eight are broad assertions containing no particulars or details at all. I note that these grounds are very similar, and some of them exactly the same, as the grounds in the application by the current applicant to the Federal Magistrates Court made on 15 May 2003. They follow a standard formula which is regularly presented to this Court.
The applicant has also filed what is entitled “Applicant's Submission Against the Notice of Motion”. This document does not address the notice of motion filed by the respondent, other than stating that the applicant objects to it. The document also annexes extracts from three cases. The document provides no assistance to the Court.
The Minister has sought by notice of motion filed on 1 July 2005 to have the application dismissed as incompetent, having been filed out of time. The respondent’s supporting affidavit dated 30 June 2005 chronicles the history of litigation by this applicant seeking review of the Tribunal decision of 14 April 2003.
On 15 May 2003 the applicant sought review in the Federal Magistrates Court. That application was dismissed on 6 May 2004.
A notice of appeal in the Federal Court was filed on 24 May 2004. Madgwick J dismissed that appeal on 30 August 2004. An application for special leave to appeal in the High Court was filed on 27 September 2004 and McHugh and Heydon JJ dismissed that application on
27 April 2005.
As I pointed out to the applicant during the hearing, section 477(1A) of the Migration Act 1958 provides that an application to this Court must be made within 28 days of notification of the Tribunal's decision. Section 477(2) prevents the Court from extending that time limit. However the time limit only applies to privative clause decisions. If the decision is not affected by jurisdictional error, it will be a privative clause decision.
The first question I must consider therefore is whether any jurisdictional error was made by the Tribunal in reaching its decision.
In his reasons for judgment of 6 May 2004, Raphael FM said at [21]:
With regard to the applicant's request for review, I am afraid that that must be declined. The reasons for the decision of the Tribunal seem to me to be clear, based upon the evidence that was before it and a reasonable deduction concerning the applicant's credibility.
And at [22]:
Given all the circumstances, this application must be dismissed.
In his decision on 30 August 2004, Madgwick J in the Federal Court on appeal from Raphael FM said at [10]:
In these circumstances, there is no basis for this appeal to succeed.
And at [11]:
Further, in the absence of evidence, the grounds appear to have insufficient prospects of success to warrant the grant of such leave. In the circumstances the appeal must be dismissed.
In the High Court on 27 April 2005, McHugh J with whom Heydon J agreed, said:
The Federal Magistrates Court held that the factual findings that the Tribunal reached were open to the Tribunal and the Tribunal had not shown actual bias or acted in bad faith.
The Federal Court dismissed an appeal on the ground that the Tribunal's decision did not involve any jurisdictional error and was not contrary to common law principles of natural justice. …
An appeal would have no prospects of success. The application must be dismissed.
Raphael FM, Madgwick J in the Federal Court and McHugh and Heydon JJ in the High Court have in effect concluded that the decision was not affected by jurisdictional error and it was consequently a privative clause decision. I am bound by the decisions of the Federal Court and the High Court and must follow them.
Being a privative clause decision, the time limit on applications in section 477 applies. The application presently before the Court was clearly made well outside that time limit. There is no basis on which I can enlarge the time for the application to overcome that problem.
The application therefore must be dismissed as incompetent.
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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