NAFL v Minister for Immigration

[2005] FMCA 1359

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFL v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1359

MIGRATION – Review of Refugee Review Tribunal decision – earlier decisions of the Federal Court and the High Court determining conclusively that the RRT decision is a privative clause decision – no jurisdiction in this Court to further review the decision.

Migration Act 1958 (Cth), ss.474, 477

NAFL v Minister for Immigration [2003] FCAFC 266
NAFL v Minister for Immigration [2004] HCA Trans 506

Applicant: NAFL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

File Number: SYG 1716 of 2005

Judgment of: Driver FM

Hearing date: 19 September 2005

Delivered at: Sydney

Delivered on: 19 September 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr P Reynolds
Clayton Utz

INTERLOCUTORY ORDERS

1. The judicial review application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

3. The Minister has liberty to apply for any further relief within 28 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1716 of 2005

NAFL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an interlocutory application by the Minister seeking the summary dismissal of a judicial review application. The judicial review application seeks review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 12 November 2002.  The judicial review application is supported by an affidavit by the applicant filed on 14 July 2005.  The applicant also filed written submissions on 13 September 2005.  The Minister relies upon her interlocutory application and also a notice of objection to competency filed on 26 July 2005.  The Minister also relies upon an affidavit by Mr Patrick David Reynolds, filed in court on 26 July 2005, with a bundle of documents exhibited to it.  I also received as an exhibit the appeal book in earlier proceedings involving the same Tribunal decision in the Full Federal Court (exhibit R1).

2. The Minister seeks the summary dismissal of the judicial review application on several bases. I indicated that I would deal first with the issue of jurisdiction arising. That issue of jurisdiction arises in the following way. Section 474 of the Migration Act 1958 (Cth) (“the Migration Act”) provides in effect that this Court has no jurisdiction to review privative clause decisions made under the Migration Act. Section 477(1A) of the Migration Act provides that an application to review a privative clause decision must be filed within 28 days of the date of notification of the decision. The time limit cannot be extended by the Court.

3. I note from the exhibit to Mr Reynolds' affidavit and exhibit R1 that the applicant was notified of the decision of the RRT by letter dated 12 November 2002.  There is no doubt that he was aware of that decision by 10 December 2002 when he applied to the Federal Court for review of that decision.  On 8 April 2003 Hely J of the Federal Court dismissed that application.  The applicant appealed from that decision to the Full Federal Court on 29 April 2003.  On 25 November 2003 the Full Federal Court dismissed that appeal in NAFL v Minister for Immigration [2003] FCAFC 266. At [14] of the decision their Honours said:

   The appellant did not advance any submissions on the appeal that identified any jurisdictional error in the reasons for decision of the RRT. Having carefully read those reasons and the reasons for judgment of Hely J we do not consider that the RRT committed any legal error or that his Honour erred, in any way, in dismissing the application at first instance.

4. The applicant sought special leave to appeal from the High Court.  On 30 November 2004 the High Court dismissed that application[1].  In refusing special leave Hayne J said:

   [1] NAFL v Minister for Immigration [2004] HCATrans 506

   In our opinion, no arguable error in the decisions of the Federal Court has been demonstrated.

5. In my view, those decisions determine conclusively for the purposes of proceedings in this Court that the decision of the RRT is a privative clause decision.  It follows that the applicant is out of time with his present judicial review application.  It also follows that even if the applicant was not out of time, the Court would have no jurisdiction to entertain the application. 

6. The judicial review application must be dismissed and I do so.

7. The application having been dismissed, costs should follow the event.  The Minister sought an indemnity costs order but I am not persuaded that costs should be awarded on an indemnity basis.  The applicant denied receipt of the Minister's written submissions and the applicant only received a complete copy of the affidavit material on 14 September 2005.  The Minister's actual costs are in the region of $4,800. On a party and party basis the Minister seeks $3,500.  The applicant did not wish to be heard on the question of costs. 

8. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,500.  I will further order that the Minister have liberty to apply for any further relief within 28 days.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 September 2005