NAEH v Minister for Immigration and Citizenship

[2007] FCA 1455

FEDERAL COURT OF AUSTRALIA

NAEH v Minister for Immigration and Citizenship
[2007] FCA 1455

NAEH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1192 OF 2007

RARES J
30 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1192 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAEH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	30 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,000.

3.The applicant not file any further proceedings in the court or the Federal Magistrates Court seeking to challenge the decision of the Refugee Review Tribunal made on 16 October 2002 and handed down on 5 November 2002 affirming the decision not to grant a protection visa, or the decision of the delegate of the first respondent to refuse a protection visa made on 2 January 2001 without the leave of a judge.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1192 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAEH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	30 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of Driver FM:  NAEH v Minister for Immigration [2007] FMCA 818. The application was dismissed by his Honour because it was filed in that court on 1 May 2007 seeking to challenge a decision of the Refugee Review Tribunal made on 16 October 2002 and handed down on 5 November 2002. His Honour applied s 477 of the Migration Act 1958 (Cth), which provides, relevantly, that an application must be brought no later than 84 days after the actual date of notification of the decision of the tribunal. His Honour noted the Minister asserted that the application was 1,654 days out of time. His Honour found that, rather, it was well over a year out of time. A competent application could only have been filed no later than 24 February 2006. His Honour dismissed the application as incompetent.

2. The litigious history, however, commenced when the applicant sought to challenge the decision of the tribunal seeking constitutional writ relief in proceedings, which were dismissed by Moore J:  NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 186. His Honour held that it was not apparent that any jurisdictional error attended the decision-making of the tribunal and that it was appropriate to dismiss the application, which he did. The appellant appealed to the Full Court: NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 177. Black CJ, Heerey and Finn JJ dismissed the appeal saying that there was nothing before them to cast any doubt on the correctness of his Honour’s decision. An application for special leave to appeal was deemed abandoned in the registry of the High Court on 12 October 2004.

3. The grounds of the application before Driver FM were that the tribunal breached the rules of natural justice, made a jurisdictional error or error of law, failed to observe the Act or the Migration Regulations 1994, ignored the merits of the review application, made its decision on the basis of unfounded and unreliable country information, the tribunal made its decision without making any research in respect of the applicant’s claims and failed to take relevant matters into consideration, made errors of law, and was unjust.  None of those grounds revealed any articulation of a claim that could possibly be made to support a ground on which the Federal Magistrates Court could intervene, even if the application had been made within time.

4. The application for leave to appeal from his Honour’s decision asserted in an affidavit in support filed by the applicant that his Honour had dismissed the proceedings without cogent grounds, failed to take into account relevant grounds, and that his Honour had failed to identify the error made by the tribunal.  None of the grounds suggested in the affidavit, which I have read, suggests any possible basis on which the court could find that there was any error in Driver FM’s decision.

5. Before me, the applicant said that he did not want to leave Australia because he had been informed by his brother of a changed situation in Bangladesh, and that a friend of his had been killed following a change of government. None of that indicates any possible basis on which the Court could grant relief in the proceedings. They are plainly an abuse of the process of the Court. His Honour was correct to dismiss the application as incompetent and filed out of time because of the failure to comply with s 477. But, in any event, they seek to relitigate anew the decision of the tribunal which has already been the subject of the previous proceedings brought in this court, to which I have referred.

6. I am of opinion that the application should be dismissed with costs. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       14 September 2007

The applicant appeared in person.

Solicitor for the Respondent:	I Muthalib of Blake Dawson Waldron
Date of Hearing:	30 August 2007
Date of Judgment:	30 August 2007