NAHR v Minister for Immigration
[2005] FMCA 1193
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAHR v MINISTER FOR IMMIGRATION | [2005] FMCA 1193 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by Federal Court – no jurisdictional error found by Federal Court – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 424A, s.441C(4)(a), 477(1A), 477(2), 483A
Judiciary Act 1903 (Cth), s.39B
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 54
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | NAHR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1312 of 2005 |
| Delivered on: | 31 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr I Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The respondent’s amended Notice of Objection to Competency filed on 14 June 2005 is upheld.
The application for judicial review filed on 20 May 2005 is dismissed as incompetent.
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 is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1312 of 2005
| NAHR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an amended Notice of Objection to Competency filed on 14 June 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that the application was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submitted that the application should be dismissed as this Court does not have jurisdiction to hear it.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 May 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 November 2002 and handed down on 19 December 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 3 January 2001 to refuse 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.
For the purpose of this Notice of Objection to Competency, the respondent tendered and applied for the affidavit of Sonia Sarah Harris sworn on 16 June 2005 (“the affidavit of Ms Harris”) to be admitted into evidence.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “NAHR”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 5 October 2000. On 5 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 3 January 2001 the delegate refused to grant a protection visa and on 1 February 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (affidavit of Ms Harris, p.12).
In his original application, the applicant claimed to be a Bangladeshi national. He stated he was born in 1963 and his family remains in Bangladesh. The applicant claimed he had lived and worked in the United Arab Emirates for some years prior to travelling to Australia in October 2000. He claimed he feared that if he returned to Bangladesh he would be persecuted by the Awami League Government because of his activities in support of the Bangladesh National Party (the BNP) and its student wing during the 1980’s. The applicant claimed he had been caught up in violent clashes between various student groups and was arrested and tortured by the Awami League government. He stated that his family paid bribes to ensure his release and that he had lived in different locations in Bangladesh for ten years.
In support of his application, the applicant’s adviser submitted that even though the Awami League government was no longer in power and had been replaced by a government led by the BNP, the applicant still faced the risk of persecution as the Awami League was still in a position to harm the applicant and he also faced the risk of harm because of his past association with certain BNP figures who the present government was trying to force out (Affidavit of Ms Harris, p.15).
Litigation history
Mr I Muthalib, Solicitor for the respondent, prepared 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).
Respondent’s application
The respondent, filed written submissions prior to the hearing which contained the following submissions and which were augmented by oral presentation by Mr Muthalib during the hearing:
a)Section 477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court under s.483A in respect of a privative clause decision must be made within 28 days of the notification of the decision. The time limit in s.477(1A) of the Act only applies to privative clause decisions, that is only decisions that are not tainted by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”); Ngu v Minister for Immigration & Multicultural & Indigenous Affairs.
b)In the previous judicial review proceedings, Raphael FM found that there was no jurisdictional error by the Tribunal. On appeal to the Federal Court, Bennett J found that Raphael FM’s reasons did not reveal any error in approach. The effect of the judgments of the Federal Magistrates Court, the Federal Court and the High Court is that the issue of whether the Tribunal’s decision is a privative clause decision has already been conclusively determined: SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs at [5]-[6] and SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (not disturbed on appeal in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195). Accordingly, determination of this issue need not await final hearing by this Court. Further, the respondent submitted that it is not open to this Court to make a different decision: SZCTT at [6].
c)As it has been held that there was no jurisdictional error by the Tribunal, the time limit in s.477(1A) of the Act applies.
d)The applicant was notified of the Tribunal’s decision by letter sent by ordinary post on 27 March 2003. The applicant is taken to have received notification on 7 April 2003: s.441C(4)(a) of the Act. However, the application was not filed until 20 May 2005 which was not within 28 days of the notification of the Tribunal’s decision. This Court has no power to extend the time for the making of such an application: s.477(2) of the Act. Therefore, the respondent submitted the application is not competent and should be dismissed.
Applicant’s submissions
The applicant filed a document entitled “Applicant’s Authorities and Grounds” prior to the hearing. This document contained a number of generic submissions which did not appear to specifically address issues before the Court. The source of the document is unknown. However, the material appeared to be in the nature of general advice raising three issues, namely the High Court decisions of Plaintiff S157/2002 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) and the Federal Court decision of SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs (“SZFKL”). Extracts of the cases mentioned were attached to the submission in the following format:
e)in the case of Plaintiff S157/2002, the title page and two pages of the judgment;
f)in the case of SAAP, the title page and the first ten paragraphs of the judgment; and
g)in the case of SZFKL, the title page and the page containing the orders.
Reasons
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 20 May 2005 and seeks review of the Tribunal decision made on 27 November 2002 and handed down on 19 December 2002, which is a period in excess of sixteen months. In the interim period, the decision of the Tribunal has been considered by the Federal Magistrates Court, a single judge on appeal in the Federal Court and has been the subject of two Special Leave applications to the High Court, which have both been deemed abandoned. No error has been found in the Tribunal’s decision. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decision of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismiss applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purposes of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did as set out in its decision and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the Objection to Competency should be upheld.
Conclusion
The application filed on 20 May 2005 relates to a privative clause decision and has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The amended Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 August 2005
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