NACB v Minister for Immigration
[2005] FMCA 914
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NACB & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 914 |
| MIGRATION – Refugee – Notice of Objection to Competency – no appearance – summary dismissal – abuse of process – frivolous and vexatious – no reviewable error. |
| Migration Act 1958 – ss.157,477(1A), 474, 477(2) Federal Magistrates Court Rules –13.10, 13.10(c), 21.02(2)(a) |
| SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498 Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 195 CLR 24 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicants: | NACB & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 579 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 June 2005 |
| Date of Last Submission: | 16 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. A. Nanson |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application for judicial review filed on 8 March 2005 is dismissed as incompetent, on the basis of upholding the respondent's Notice of Objection to Competency.
The applicants pay the respondent's costs set in the amount of $3000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 579 of 2005
| NACB & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed in this Court on 18 March 2005 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 August 2002 and handed down on 17 September 2002 to affirm the decision of a delegate of the respondent Minister made on
2 May 2000 to refuse a protection visa to the applicants who are mother and son and are both Russian nationals.
I also have before me a Notice of Objection to Competency filed by the respondent on 17 March 2005 in relation to this application, which relies on s.477(1A) of the Migration Act. This section requires that applications for review must be filed within 28 days of the date of notification of the Tribunal decision. In addition, s.477(2) of the Act provides that this Court must not make an order allowing an applicant to lodge an application outside the time specified in s.477(1A). I also have before me a Notice of Motion filed by the respondent on 1 April 2005 seeking dismissal of the application pursuant to rule 13.10 of the Federal Magistrates Court Rules as an abuse of process of the Court and also as frivolous and vexatious.
The respondent has also filed the affidavit of Andrew John Crockett, a solicitor in the employ of the respondent solicitors, sworn on 1 April 2005. The affidavit annexes a copy of the Tribunal's decision and outlines the history of litigation concerning the same Tribunal decision complained of by the applicants now. This decision was the subject of an application to the Federal Court which was dismissed by Lindgren J at first instance on 7 March 2003, and on 31 October 2003 the Full Federal Court made orders dismissing an appeal from the orders of Lindgren J.
The applicants subsequently sought special leave to appeal from this judgement to the High Court of Australia. On 14 September 2004 the High Court made orders dismissing the application for special leave to appeal. I note that the applicants were legally represented at each stage of these proceedings.
When the matter was called today the applicants did not appear. I was advised through my associate that the Court registry had earlier today received a telephone call from the applicant son asserting that both he and his mother were ill and would not be attending. I subsequently took into evidence the affidavit of Angela Margaret Nanson sworn on 17 June 2005. The affidavit sets out part of a telephone conversation between Ms. Nanson and the applicant son which took place on
17 June 2005. The account of the conversation is that the applicant son said:
“My mother and I both have viruses. We will not be coming to the hearing today.”
Ms. Nanson sought to confirm:
“Neither of you will be there?”
The applicant said “no” and Ms. Nanson then said:
“You understand that I will be seeking orders that your application be dismissed with costs in your absence?”
The applicant son said:
"Yes, I do."
I have nothing before me to show that the applicants sought an adjournment of the hearing today. Nonetheless as both applicants are unrepresented I considered whether to treat the applicant son’s advice to Ms. Nanson as a request for an adjournment. In circumstances where clearly the applicant has not sought any adjournment and did not seek any adjournment when invited to do so by the question put to him by Ms. Nanson, and in circumstances where this application must be dismissed on the grounds of the Court lacking jurisdiction, as I will explain below, it would have been a useless and futile exercise to have further delayed the matter by drawing any inference that the applicant son was really seeking any adjournment in his conversation with Ms. Nanson. Nor beyond the applicant son's reported conversation do I have anything from the applicant mother. I should also note that the applicants have provided no evidence whatsoever by way of medical certificate, or advised of any intention to obtain a certificate, of their inability to attend Court today in relation to a hearing of which they had notice since early April 2005. The affidavit of Ms. Nanson also refers to the respondent’s advice to the applicants dated 1 April 2005 (Annexure “A”) that the respondent’s Motion was set down for hearing today at 2:15 p.m.
Ms. Nanson who appeared for the respondent Minister before me today pressed the Notice of Objection to Competency on the grounds that the decision was a privative clause decision and that contrary to s.477(1A) of the Migration Act the application was not lodged within 28 days of the applicants being notified of the Tribunal decision of which they complain. Ms. Nanson submits that the present application is made almost three years following the Tribunal decision, in which time the matter has been fully considered by a single judge of the Federal Court and by the Full Federal Court and thereafter by the High Court.
The respondent relies on two decisions of Driver FM: SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498, both decisions which were upheld on appeal by the Federal Court. In both those cases there was no doubt that the applications for review had been filed well outside the prescribed time in s.477(1A) of the Act. The Court first considered the issue of whether the decision of the Tribunal was a privative clause decision and found in both matters that the Tribunal decisions having been considered by the Full Court of the Federal Court in each case, and having found that there was no jurisdictional error in respect of each decision, that this meant that the matter as to whether the decisions were privative clause decisions or not, had been conclusively determined.
I note as Conti J said in the appeal in SZCTT at paragraph 7 of the Court's judgment:
“It is clear that the applicant has exhausted his legal rights as established at least by the judgments of four judges of this court. The application to the Federal Magistrates Court was inferentially an abuse of process and leave to appeal on the question of competence is of the same character.”
In the matter before me the Federal Court at first instance found that there was no jurisdictional error by the Tribunal. Lindgren J in that case specifically noted at paragraph 4 of the judgment that the applicants relied on alleged jurisdictional error by the Tribunal. The Full Federal Court reviewed this matter and dismissed the applicants' appeal on the basis that there was no reviewable error. For that matter, nor could the High Court see that there were sufficient prospects of success of an appeal to warrant a grant of special leave. The application for special leave before it was dismissed.
I am bound by the decision of the Full Federal Court in this matter. The effect of the judgements in the Federal Court is that the decision of the Tribunal, which is the subject of the application before me, has already been found to be a privative clause decision. I should just note for the benefit of the applicants who will be sent a copy of this judgment that the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 195 CLR 24 was made on
4 February 2003 and preceded both judgments of the Federal Court in this matter. The effect of the decisions of the Federal Court is that it has been found that there was no jurisdictional error and therefore the question of whether this is a privative clause decision or not has been conclusively determined. I particularly note this because the applicants in written submissions made reference to this case. I will say further on that in a moment.
The decision of the Tribunal, as I said, has been found to be a privative clause decision as explained by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. This means that in the absence of jurisdictional error, s.474 of the Act operates to make the time limit in s.477(1A) effective in this case. This Court now has no jurisdiction and therefore the respondent's Objection to Competency must be upheld and the application is dismissed on that basis.
But again for the applicants' benefit, I should note the following. The applicants who were unrepresented in the application before me submitted by way of the application that the privative clause rule is a reference to s.474 of the Migration Act and that this was overruled by the High Court in February 2003. They said that as their application had been made to the Federal Court prior to that decision, that this somehow prevented the applicants from asserting a failure on the part of the Tribunal to comply with s.424A(1) of the Migration Act.
Firstly, again for the applicants' benefit, the High Court did not overrule the privative clause. What the High Court did was to unanimously hold that on its proper construction, s.474 of the Migration Act is valid, but the Court also held that it did not apply to a decision that involved jurisdictional error. As in the case before me, a Full Federal Court has already endorsed a finding that there was no jurisdictional error in the Tribunal's decision of which the applicants complain again. As I have already said, I consider this Court is bound by that decision and its effect and consequence is that as s.477(1A) requires an application for judicial review to this Court to be made within 28 days, and as the applicants have not made the application within that time, then the application has been dismissed for that reason.
Secondly, the applicants also submitted that the Tribunal failed to comply with s.424A(1) of the Act. The applicants submitted that the Tribunal decision was based on three findings that:
i)The applicants had fabricated their claims.
ii)The persecution that the applicant feared did not bear a requisite connection to one of the five convention reasons.
iii)The Russian authorities would be able to provide the applicants with protection against any threat they may face from the Chechnyans.
Again for the applicants' benefit, given that they have now pursued this matter unrepresented, s.424A deals with information that must be given to applicants by the Tribunal. Section 424A(1) provides that the Tribunal must give to the applicants information that will be the reason or part of the reason for affirming the decision under review. Clearly s.424A is concerned with knowledge of a fact communicated to, or received by the Tribunal. It is not concerned with the thought process of the Tribunal, which appears to be the applicants' real complaint in the written material that they have submitted to this Court. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville J said at [54]:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
Secondly, it is also clear that one of the key findings by the Tribunal that the applicants had fabricated their claims was based on the applicant mother's omission to make any mention of particular matters when applying for a protection visa with the respondent's Department. These claims. were later made to the Tribunal. The applicants refer to page 18 of the Tribunal's decision in this regard. It is quite clear, as Lindgren J referred at paragraph 28 in the judgment of the Court, that in accordance with s.424A of the Act the Tribunal wrote to the applicant mother on 23 July 2002 referring to her failure to mention earlier claims. that her son had witnessed certain activities of Russian soldiers and that the Tribunal's letter stated the relevance of this failure. This was that it cast doubt on whether the applicants were telling the truth. For the applicants' benefit again, I note that the relevant information relied on by the Tribunal to make the findings of which the applicants now complain, was put in writing to the applicants (the need for which has subsequently been explained by the High Court in the recent decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005); that is, the need to put such matters in writing). So it is clear that even if this Court did have jurisdiction to hear the application before it, this ground, in the absence of anything else on the applicants' part, would not succeed.
I have made these latter comments by way of assistance to two unrepresented applicants. It is clear this Court has already found that it does not have jurisdiction in relation to this application and it is on this basis that in upholding the respondent's Notice of Objection to Competency that the application is dismissed. I should also note that it is therefore not necessary to consider further the respondent's alternative application for summary dismissal pursuant to rule 13.10(c) of the Federal Magistrates Court Rules. The order that I make today is that the application for judicial review filed on 8 March 2005 is dismissed as incompetent, on the basis of upholding the respondent's Notice of Objection to Competency.
I note also in relying on the affidavit of Angela Nanson sworn 17 June 2005 that the applicants were put on notice that the respondent would be seeking an order for costs if the application were to be dismissed. There is nothing before me to show that the applicant son or indeed the applicant mother on whose behalf he purported to relay the reason for her failure to attend before the Court today, that the applicants have taken any subsequent steps, once having been put on notice to contact the Court to seek any opportunity to object to the making of a costs order or to make any submission. I find in those circumstances that it is appropriate to proceed to consider whether an order for costs should be made. In all the circumstances it is appropriate that an order for costs be made. The applicants were able to pursue this matter previously with legal advice and there is nothing before me to show that they could not have sought advice before pursuing this latest application. The Minister has been put to some expense in responding, and in the circumstances of the work that the respondent has done in this matter in responding to the application put on by the applicants, I find that an amount of $3000 is a reasonable amount.
The second order that I make then is that the applicants pay the respondent's costs set in the amount of $3000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 29 June 2005
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