M289 of 2003 v Minister for Immigration
[2005] FMCA 388
•2 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M289 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 388 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
VBAU v Minister for Immigration [2002] FMCA 166
VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288
| Applicant: | APPLICANT M289 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 650 of 2004 |
| Delivered on: | 2 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 March 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Counsel for the Respondent: | Mr T.B.M. Mosby |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $4,500.00.
The applicant not commence further proceedings without leave of a Court with appropriate jurisdication.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 650 of 2004
| APPLICANT M289 of 2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application seeking judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) of 30 January 2002. The matter was commenced by way of application for an order nisi in the High Court of Australia and ultimately remitted to this court. The application appears to have been commenced on 1 December 2003, a considerable period of time after the relevant decision by the RRT.
The RRT considered the applicant's claims and stated towards the end of its 22 page decision:
The Tribunal is not satisfied for all the above reasons that he is now or was at the time of his departure from Sri Lanka being sought by political opponents. The Tribunal notes that the country information above indicates that violence occurs at election time. However as stated above the Tribunal is not satisfied that the applicant has been subjected to such violence or threats of violence in the past. Given this and given the applicant's own low level political profile the Tribunal finds there is no real chance he will face serious harm amounting to persecution now or in the reasonably foreseeable future because of his political opinion should he return to Sri Lanka.
The Tribunal finds that the applicant does not have a well‑founded fear of persecution because of his political opinion or for any other Convention reason.
The grounds upon which the applicant sought the order nisi are lengthy and read as follows:
1.The Respondents do show cause why a Writ of Prohibition should not be issued out of this Court directing the Second respondent to refrain from giving effect to the decision dated 30 of January 2002.
2. The respondents do show cause why a Writ of Certiorari should not be issued out of this Court directed to the Second Respondent calling up and quashing its decision dated 30th of January 2002 and why a Writ of Mandamus should not be issued out of this Court directed to the Second Respondent directing it to determine the Applicant’s application for a protection visa according to law upon the ground that:
(1) The Second Respondent made the decision in circumstances that amounted failure to accord the Applicant natural justice.
(2) The Second Respondent constructively failed to exercise its jurisdiction in that it failed to take into a account relevant considerations in the exercise of its power under the Act, which it was bound by the Act to take into account in the circumstances of the case, and/or took into account irrelevant considerations in the exercise of its power under the Act.
(3) That the decision of the Second Respondent was so unreasonable that no reasonable decision maker could have made it.
(4) The Second Respondent constructively failed to exercise its jurisdiction in that it was affected by an error of law in the exercise of its power under the Act.
(5) The Second Respondent failed to exercise its jurisdiction in that in making the decision there was an improper exercise of power conferred by the Act, because the decision was:
• Affected by bad faith or bias;
• Made for an ulterior purpose;
• Not made in accordance with the procedures set out in the Act;
(6) The Second Respondent failed to exercise the jurisdiction conferred on it by the Act in that the exercise of power under the Act is based on a finding for which there was no evidence or other material,
(7) The Second Respondent made the decision in the circumstances, which were otherwise contrary to the law.
3. Further, the Respondent does show cause why relief should not otherwise is granted under ss.75 (ii) or 75(v) of the Constitution, namely: an injunction prohibiting the First Respondent himself by his officers and agents from removing the Applicant from Australia pending the determination according to law of his application for a protection visa.
Despite the very lengthy nature of the grounds relied upon, a careful review of each of the grounds shows that none of them relate specifically to the facts and circumstances of the specific decision.
Orders were made by Registrar Efthim on 18 August 2004 for the filing of an amended application and proper particulars of the grounds relied on by 20 October 2004 and the filing of contentions of fact and law by 27 October 2004. The matter again came before the court on 19 November 2004 before Hartnett FM who made orders that an amended application and proper particulars be filed by 21 days after 19 November and further that contentions of fact and law also be filed 21 days after the receipt of a court book. The court book in the matter was filed on 18 November, the day before that hearing. The applicant has not complied with any of the directions.
Today the applicant appeared and I made inquiries of him as to the reasons that he disputed the decision by the RRT, to which he advised that he had a very lengthy hearing but does not feel that he was appropriately heard during that hearing. He says that the hearing ran for some five hours. It does not appear that he has taken any steps to obtain the tapes, nor does it seem that the lawyers who drew his original application must have been aware of that issue at the time the application was drawn as it is not referred to in a way that particularises the complaint.
The way in which that issue was raised from the bar table does not lead one to conclude that there is a reasonable basis for the claim or an arguable case on that issue.
The RRT hearing took place in the presence of an interpreter and it was for an extensive period. The terms of the RRT's decision are lengthy and recount a great deal of evidence and many considerations. It appears that in reality this is an application for review of the RRT's decision on the basis of merit, which is not available in judicial review proceedings.
In the circumstances I am satisfied that the applicant has failed to comply with the various directions and further that he has not been able to demonstrate a prima facie or arguable case before me today. In these circumstances it is appropriate that the application be dismissed before further costs are incurred in the matter.
I also note that despite the above, a further impediment to the applicant's case is that he has already had a decision from the Federal Magistrates Court on 9 August 2002 dismissing his application. This decision is reported as VBAU v Minister for Immigration [2002] FMCA 166.
This decision was the subject of an appeal in the Federal Court which was dismissed on 12 November 2003, reported as VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288.
It therefore appears that the applicant is not only without a prima facie case before me and in breach of directions, but in a case where there has already been judicial consideration of the circumstances and decisions against him which appear on their face to create an estoppel.
I therefore find it is appropriate to dismiss the current application.
I also propose to order that the applicant not file further applications without leave of the court.
In this case the applicant has been unsuccessful. This is not his first application to the court. He has caused considerable costs to be expended by the respondent. He has been unsuccessful. I see no reason why he ought not as a matter of law pay the costs of the respondent. I propose to fix those costs at $4,500.00 in this case, having regard to the work that has been done which includes an outline of argument from counsel.
I will order that the applicant not apply for further orders with respect to this decision of the RRT without first obtaining leave of the court.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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