NAJI v Minister for Immigration
[2005] FMCA 1072
•1 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1072 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application for want of jurisdiction – RRT decision previously accepted as free from jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477 |
| Applicant S503 of 2002 v Minister for Immigration [2002] FCAFC 133 BC v Minister for Immigration [2002] FCAFC 221 |
| Applicant: | NAJI |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1599 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 1 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr J Kettle, Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the Refugee Review Tribunal is to be joined as the second respondent to these proceedings.
The judicial review application is dismissed on the basis that the Court has no jurisdiction to entertain it.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1599 of 2005
| NAJI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency and a notice of motion seeking summary dismissal, both filed on 1 July 2005. The notices relate to a judicial review application filed on 20 June 2005. That judicial review application relates to a decision of the Refugee Review Tribunal (“the RRT”) made on 2 December 2002 and handed down on 29 January 2003. It follows that the judicial review application was made more than two years after the decision of the RRT. The background to this matter is set out in written submissions prepared on behalf of the Minister by Mr Kettle and in an affidavit in support of the summary dismissal and notice of objection notice filed on 1 July 2005.
I accept the affidavit of Andrea Jane Nesbitt and adopt for the purposes of this judgment the factual summary contained in paragraphs 4 to 10 of the written submissions:
The applicant claimed to be an active member of the Bangladesh National Party (“BNP”) student wing and organised demonstrations and campaigned for BNP candidates. He was allegedly attacked by AL members, had a variety of false charges laid against him and was arrested and detained on numerous occasions by the police. The applicant also claimed that he faced harm from within the BNP.
The RRT was not satisfied that there was any continuing interest by the Bangladeshi authorities in the applicant or that the difficulties faced by the applicant constituted persecution for a Convention reason.
Previous proceedings
On 29 January 2003, the RRT handed down a decision affirming the decision of the Delegate to refuse the applicant a protection visa.[1]
On 14 February 2003, the applicant filed an application for judicial review in the Federal Court of Australia. The proceedings were given proceedings number N114 of 2003.[2] The grounds of that application included that the applicant was deprived of the opportunity to fully present his case to the RRT, that the “Tribunal failed to act according to substantial justice and the merits of the case were ignored”, and the applicant was not satisfied with the RRT’s comments “regarding my real chance of persecution in Bangladesh.”
On 28 April 2003, the Honourable Justice Madgwick ordered that the application be dismissed with costs.[3]
On 16 May 2003, the applicant filed a notice of appeal in the Federal Court of Australia appealing the orders and judgment of Madgwick J dated 28 April 2003.[4] The notice of appeal alleged that Madgwick J failed to find “error of law, procedural fairness, jurisdictional error, denial of natural justice and relief under section 39B of the Judiciary Act 1903 (Cth).” On 26 November 2003, the Honourable Justices Sackville, Selway and Lander ordered that the appeal be dismissed and that the appellant pay the respondent’s costs.[5]
On 23 December 2003, the applicant filed an application for special leave to appeal in the High Court of Australia, which was given proceedings number S632 of 2003.[6] The application for special leave to appeal claimed that the Federal Court erred in not finding error of law in the RRT decision, the RRT did not find any evidence in relation to his claims and its decision was influenced by “sufficient doubts.” The applicant further claimed in his grounds of review that the RRT decision was affected by the decisions of Muin and Lie. On 5 July 2004, those proceedings were deemed abandoned by the High Court.[7]
On 29 July 2004, the applicant filed a second application for special leave to appeal in the High Court of Australia, which was given proceedings number S271of 2004.[8] That application for special leave to appeal repeated the grounds pleaded in the applicant’s previous application for special leave to appeal. On 26 May 2005, Hayne and Callinan JJ ordered that the application for special leave to appeal be dismissed and that the applicant pay the respondent’s costs of the application.[9]
On 20 June 2005, the applicant filed the current proceedings in the Federal Magistrates Court which were given proceedings number SYG1599 of 2005. The current application pleads that the RRT asked itself the wrong question, did not take into account oral evidence, denied the applicant natural justice, was biased, and denied the applicant procedural fairness. No particulars are provided in support.
[1] Affidavit of Andrea Jane Nesbitt sworn 1 July 2005 (“affidavit”), exhibitAJN1, pp.1-15
[2] Affidavit, exhibit AJN1, pp.16-18
[3] Affidavit, exhibit AJN1, pp.19-26
[4] Affidavit, exhibit AJN1, pp.27-29
[5] Affidavit, exhibit AJN1, pp.30-39
[6] Affidavit, annexure B, pp6-8
[7] Affidavit, annexure C, p9
[8] Affidavit, annexure D, pp10-11
[9] Affidavit, annexure E, p12
The Minister asserts that the judicial review application ought to be summarily dismissed on the basis of res judicata, issue estoppel and Anshun estoppel. The Minister also asserts that the Court has no jurisdiction to review the RRT decision because it is a privative clause decision and the judicial review application was filed well outside the prescribed time limit of s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). I have previously held that where it is clear on the basis of previous decisions of this Court or the Federal Court, that a tribunal decision is a privative clause decision this court has no jurisdiction to entertain a subsequent judicial review application.
In the present case, Madgwick J dismissed an earlier judicial review application on 28 April 2003. His Honour appears not to have limited himself to the matters raised by the applicant before him. On page 5 of his judgment in paragraph 16, his Honour stated that he had himself considered whether any jurisdictional error suggested itself to him. He found that none did. The applicant required an extension of time to appeal against the decision of Madgwick J. On 26 November 2003, the Full Federal Court refused that application. In dismissing the application, their Honours observed that they could find no appealable error in the reasoning of Madgwick J. The applicant made two attempts to obtain special leave to appeal to the High Court against that decision. I am told that the first was abandoned and the second was unsuccessful.
The findings of Madgwick J are not strictly binding upon me but they are highly persuasive. Judicial comity requires that I should follow his decision unless I am satisfied that it was clearly wrong. The observations of the Full Court concerning the RRT decision are strictly obiter although they add to the weight of the decision of Madgwick J.
The failure by the applicant to obtain special leave to appeal to the High Court adds further to the weight, both of the decision of Madgwick J and the Full Court decision. The combination of the earlier proceedings in the Federal Court and the High Court establish to my satisfaction that the RRT decision is a privative clause decision. I agree with and adopt for the purposes of this judgment, paragraphs 11 to 16 of Mr Kettle's written submissions:
A notice of objection to competency was filed by the respondent in the Federal Magistrates Court of Australia on 1 July 2005 on the basis that the application for judicial review was filed outside the 28 day time limit specified under s.477(1A) of the Migration Act.
The relevant RRT decision was handed down on 29 January 2003. The current application was filed on 20 June 2005 and the applicant acknowledges in the application that he was notified of the RRT decision on or about 29 January 2003. The current application was therefore filed almost two and a half years outside the 28 day period. Accordingly, there is non-compliance with s.477(1A) of the Act.
Insofar as s.477(1A) of the Act refers to a “privative clause decision,” Madgwick J dismissed the applicant’s previous proceedings and stated at paragraph 16 of his written reasons: “I have considered the material to see whether any jurisdictional error suggests itself to me, but none does. For these reasons the application must be dismissed.”[10]
Furthermore, on 26 November 2003, Justices Sackville, Selway and Lander dismissed the applicant’s appeal and stated in their judgment:
“Even if we take a particularly generous view of the appeal grounds as raising a general and unparticularised issue of whether the primary Judge made some appealable error in his analysis of whether the Tribunal made a jurisdictional error, there is nothing in the processes, reasoning or decision of the Tribunal that appears to involve any error, whether jurisdictional or not. This is what the primary judge found. We can find no appealable error in the reasoning of the primary judge.” [11]
Accordingly, the RRT decision handed down on 29 January 2003 should properly be regarded as a “privative clause decision.” As the applicant has filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no power to extend that time and accordingly no jurisdiction to hear the application.
[10] Affidavit, exhibit AJN1, p25
[11] Affidavit, exhibit AJN1, p37
I find that the decision of the RRT is a privative clause decision on the basis of the earlier Federal Court decisions. Accordingly, because of the operation of ss.477 and 474 of the Migration Act, this Court has no jurisdiction to entertain the judicial review application any further. If I should be wrong in that conclusion, I also agree with and adopt for the purposes of this judgment, Mr Kettle's submissions concerning res judicata, issue estoppel and Anshun estoppel:
Res judicata
The doctrine of res judicata applies to the present application because it seeks review of the same RRT decision that was the subject of the applicant’s previous judicial review application. The substratum of facts giving rise to the right to review are the same, the substance of the proceedings are the same, the right to relief in each case is informed by the same substantive law principles and the proceedings do not differ in any material respect.[12] Res judicata is a complete bar to the application and the Court has no discretion to allow the matter to continue.
Issue estoppel
The doctrine of issue estoppel also applies to the current application as the issues raised in this application have previously (with the possible exception of bias) been put in issue and determined between the parties.
Anshun estoppel
In any event, the proceedings are at least barred by the operation of the doctrine of Anshun estoppel as the matters put forward in the current proceedings could have been put in the applicant’s earlier proceedings.[13] Anshun estoppel prevents a party from raising in new proceedings matters that properly belonged to the subject of earlier litigation that could have been brought forward in the earlier litigation by a party exercising reasonable diligence.[14] All the grounds raised in the current application could have been raised in the applicant’s previous proceedings in the Federal Court. In addition, the applicant has not established “special circumstances” that would justify the Court exercising its discretion not to apply the Anshun principle.[15]
[12] See: Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 at 397, Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-56 per Fisher J and at 365 per Ryan J; Somanader v Minister for Immigration [2000] FCA 1192 per Merkel J; Re Ruddock; ex parte LX [2003] FCA 561 per Heerey J at [48].
[13] Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602
[14] Wong v Minister for Immigration [2004] FCA 51 at [49]; Daniel v Minister for Immigration [2004] FCA 21 at [25]
[15] BC v Minister for Immigration [2002] FCAFC 221 at [22] – [30]
The Full Federal Court recently confirmed in Applicant S503 of 2002 v Minister for Immigration [2005] FCAFC 133 the importance of the Court's exercising original jurisdiction in migration proceedings, not permitting the repeated adjudication of challenges to the same RRT decision.
It is unnecessary for me to consider whether the judicial review application is an abuse of process and I make no finding on that issue. I will dismiss the judicial review application on the basis that the Court has no jurisdiction to entertain it.
The application for judicial review having been dismissed, costs should follow the event. Mr Kettle seeks an order for costs fixed in the sum of $3,500. I am satisfied that costs of that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis. The applicant referred to his impecuniosity but as has been repeatedly observed in other proceedings that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
If, in the light of this decision, the applicant applies again to review the decision of the RRT it is likely that such an application would be dismissed with costs, and it is likely that an abuse of process would in those circumstances be found. At this stage I will not make a direction to the registry not to receive a further application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 August 2005
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