NAHR v Minister for Immigration
[2006] FMCA 1623
•1 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAHR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1623 |
| MIGRATION – Application for review of Refugee Review Tribunal – refusal of a protection (Class XA) visa – decision of the Tribunal previously upheld by the Federal Magistrates Court on two occasions and the Federal Court – a separate application to review the delegate’s decision has been dismissed by the Federal Magistrates Court and the Federal Court – new application for review of Tribunal decision dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), rr.10.01, 13.10(c), 44.06(2)(b) Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 417, 476, 486D Migration Litigation Reform Act 2005 (Cth) |
NAHR v Minister for Immigration [2003] FMCA 318
NAHR v Minister for Immigration [2003] FCA 1295
NAHR v Minister for Immigration [2005] FMCA 1193
NAHR v Minister for Immigration [2005] FMCA 1949
NAHR v Minister for Immigration [2006] FCA 503
| Applicant: | NAHR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2930 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondents: | Mr I Muthalib |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application filed on 11 October 2006 is an abuse of process and is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2930 of 2006
| NAHR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 11 October 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 September 2006, affirming the decision of a delegate of the first respondent made on 3 January 2001 refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “NAHR”.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. The applicant sets out three grounds of review:
1.The Tribunal failed to internalize the circumstantial grounds of the review application and in weighing both the subjective claims of the review application and in reviewing the huge supporting facts and documents and such has breached section s426(2), s426(3), s427(4) and s440(2)(b) of the Act.
2.I supplied additional evidence to the Tribunal, but unfortunately the Tribunal did not pay attention on those additional evidence and used the previous controversial DFAT report and other traditional and structured sources in arriving decision. Further and in the alternative, if the above documents were referred to by the Tribunal, there is no mention of these documents in the Tribunal reasons. This constitutes a breach of section 430(1)(c)(d) of the Act. The above ground are judicially reviewable under section 476(1)(a)(e)(f)(g) of the Migration Act.
3.The Tribunal’s ignoring evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness, which is an essential condition of the exercise of the decision making power and attracts s 39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113].
Litigation history
I refer to my previous decision of NAHR v Minister for Immigration [2005] FMCA 1193 which contains a convenient brief summary of the litigation history of this applicant, which I have adopted and reproduced as follows:
a)On 11 February 2003 the applicant applied to the Federal Court for review of the Tribunal’s decision (Federal Court Proceedings No. N13 of 2003). The application, which was unparticularised, was accompanied by an affidavit sworn by the applicant on 2 January 2003. The previous application was transferred to the Federal Magistrates Court on 11 February 2003 (Federal Magistrates Court Proceedings No. SZ252 of 2003).
b)On 24 July 2003 the previous application was dismissed with costs. Raphael FM considered the grounds contained in the applicant’s application and supporting affidavit, which his Honour observed "only rehearse[d] his claims for asylum, [and did] nothing to indicate why he believes the Tribunal made a jurisdictional error in the manner in which it came to its decision". His Honour then considered whether any jurisdictional error was apparent from the Tribunal’s reasons. In this regard, his Honour found that "on the face of the [decision] record, it would seem that the Tribunal considered the relevant information that had been presented on behalf of the applicant but for the reasons it gave, and which [his Honour] set out, came to the view that, on balance, the applicant did not have a well-founded fear of persecution as there was no real chance of him being singled out for harm because of his political activities if he did not return to Bangladesh". His Honour accepted the respondent’s submission that the Tribunal finding that the applicant did not have a well-founded fear of persecution was a conclusion of fact which the Tribunal was entitled to reach and it was appropriate for the Court to revisit this factual determination. Raphael FM found that there was no jurisdictional error by the Tribunal and therefore dismissed the application.
c)On 6 August 2003, the applicant appealed to the Federal Court. On 17 November 2004, Bennett J hears the applicant’s appeal. Her Honour carefully addressed each of the grounds enumerated in the notice of appeal and ultimately observed that no error in the Tribunal’s decision or in the judgment of Raphael FM was apparent and agreed with the respondent’s submission that the applicant failed to show any bias, bad faith or denial of natural justice on the part of the Tribunal or any error of law on the part of the Federal Magistrate. Accordingly, her Honour held that the claim of jurisdictional error could not be sustained. In summary, Bennett J found that in relation to the allegation of actual bias, all mistakes the applicant alleged were made by the Tribunal (none of which, in any event, her Honour conceded occurred) were factual matters and invited the Court to enter into impermissible merits review. In relation to the applicant’s complaint that the Tribunal "did not treat this matter as a s.424A issue", her Honour noted that it was not clear, in the absence of details or elaboration what this meant, and, in any event, s.424A does not apply to the statutory declaration the applicant submitted with his Federal Court application by virtue of the exception contained in s.424A(3)(b). In relation to the applicant’s claim that a Muin type error had been committed (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal), her Honour held that there was no evidence or detail with respect to any document not before the Tribunal or to any suggestion that the appellant was misled. Accordingly, he had not made out a case of failure to afford procedural fairness. Accordingly, the appeal was dismissed with costs.
d)On 12 December 2003 the applicant filed an application for special leave to appeal to the High Court. On 15 June 2004 the applicant’s special leave application was deemed abandoned.
e)On 14 July 2004 the applicant filed an application for special leave to appeal to the High Court. On 14 January 2005 the applicant’s special leave application was deemed abandoned.
f)On 20 May 2005 the applicant filed an application in the Federal Magistrates Court again seeking review of the Tribunal’s decision (the present application).
On 31 August 2005, after considering both the respondent’s Notice of Objection to Competency and the applicant’s submissions together with the relevant authorities, I dismissed the application as being incompetent. I also made the order:
3.The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal made on 27 November 2002 and handed down on 19 December 2002 is to be accepted for filing without leave of the Court.
The applicant made a further application for judicial review of the delegate’s decision in proceedings SYG3040 of 2005. The Minister, by interlocutory application, seeks the summary dismissal of the proceedings under r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules) on the ground that the continuance of the application would be an abuse of process of the Court. In NAHR v Minister for Immigration [2005] FMCA 1949 His Honour Smith FM made the following findings at [23] – [25]:
23.It is plain to me that the applicant's history of litigation shows that he brings applications to Courts without any concern at all as to their merits or effect, and for the predominant purpose of engaging in protracted litigation for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceedings regardless of their merits.
24.In all the circumstances, it is appropriate to make the order for summary dismissal sought by the Minister. I also propose to extend the direction given by Lloyd-Jones FM, which now unfortunately appears to have been drafted too narrowly.
25.I consider that the circumstances justify an order for costs on an indemnity basis.
The applicant appealed the decision of FM Smith in the Federal Court of Australia in proceedings NSD44 of 2006. In the decision NAHR v Minister for Immigration [2006] FCA 503 on 5 May 2006 His Honour Conti J made the following findings at [5] - [7]:
5.…The present application constitutes plainly an abuse of process.
6.As to the second consideration even if the Federal Magistrate’s decision contained an error, reviewable or appealable, which is not the case, there was no jurisdictional error in the delegate’s original decision that has been demonstrated. Accordingly, no substantial injustice would result if leave to appeal was to be refused, particularly in the light of the applicant’s prior history of unsuccessful applications outlined above.
7.The application for leave to appeal from the interlocutory judgment of Federal Magistrate Smith given on the 23 December 2005 is therefore dismissed with costs.
Current Tribunal Decision
On 26 May 2006, the applicant lodged a further application with the Tribunal for review of the delegate’s decision made on 3 January 2001. On that date, a delegate of the Minister refused to grant a protection visa. In a brief decision the Tribunal member reviewed the previous application to the Tribunal and the subsequent review applications to both the Federal Magistrates Court and Federal Court. The Tribunal member also records that the applicant unsuccessfully sought the Minister’s intervention under s.417 of the Act. The question before the Tribunal member was whether the Tribunal member had jurisdiction to consider the current application. The Tribunal formed the preliminary view that it did not have jurisdiction because the Tribunal had already reviewed the delegate’s decision. The Tribunal wrote to the applicant on 29 May 2006 inviting submissions on this issue. The applicant made written submissions by letter dated 26 June 2006. The Tribunal did not consider that those submissions provided any basis for accepting the reivew application lodged on 26 May 2006. The Tribunal concluded that it had already discharged its function under the Act to review the delegate’s decision. It referred to the previous unsuccessful applications for judicial review of the Tribunal’s earlier decision and that of the delegate. The Tribunal records its decision as:
The Tribunal does not have jurisdiction in this matter.
Under r.10.01(2) of the Rules, the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments introduced r.44.11(a) to the Rules. The Court may dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12, which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2) To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
I note that this power should be exercised cautiously and only in the appropriate circumstances. In this case there is an incontestable absence of jurisdiction due to the multiple times this applicant has been before the Courts as referred to above at [4] – [7].
The applicant has not complied with s.486D(1) of the Act by failing to disclose prior to judicial review as detailed above, in respect of the decisions under review pursuant to r.44.06(2)(b) of the Rules.
I believe that all the applicant has done is to file another application in an attempt to start the whole circular process again. The applicant has attempted to raise new grounds of review, however these grounds do not arise in the Tribunal decision for which he is seeking judicial review. This is nothing more than an attempt by the applicant to further delay finality by misusing the Court’s process. It is clearly an abuse of process.
Consequently, the application filed on 11 October 2006 must be dismissed on the ground that it is an abuse of process. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 2 November 2006
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