NALK v Minister for Immigration

[2005] FMCA 1238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALK v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1238

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.

Federal Magistrates Court Act 1999 (Cth), ss.14, 15
Federal Magistrates Court Rules 2001 (Cth), r.13.10
Migration Act 1958 (Cth), ss.91X, 477(1A)
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
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: NALK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG1283 of 2005

Delivered on: 31 August 2005

Delivered at: Sydney

Hearing date: 8 August 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Advocate for the Respondent: Ms S Zarucki

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed on 18 May 2005 is dismissed as incompetent.

2. The Court directs that no further application by this applicant to review the decision of the Refugee Review Tribunal made on 30 January 2003 and handed down on 20 February 2003 is to be accepted for filing without leave of the Court.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1283 of 2005

NALK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an application filed on 2 June 2005 the respondent seeks an order that the applicant’s application be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth).  On the grounds stated in the application the respondent claims:

   a)An order that the application filed on 18 May 2005 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that:

   i)No reasonable cause of action is disclosed in relation to the proceeding or claim for relief;

   ii)Further or in the alternative, the proceeding or claim for relief is frivolous or vexatious; and

   iii)Further or in the alternative, the proceeding or claim for relief is an abuse of the process of the Court.

   b)Further or in the alternative, an order that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.

2. 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 18 May 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 January 2003 and handed down on 20 February 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on

   
   

   28 February 2000 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks relief in the form of a declaration that the matter be returned to the Tribunal for reconsideration.

3. For the purpose of this application, the respondent tendered and applied for the affidavit of Svetlana Zarucki sworn on 2 June 2005 (“the affidavit of Ms Zarucki”) to be admitted into evidence.

Background

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NALK”.

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 17 October 1999. On 24 November 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 28 February 2000 the delegate refused to grant a protection visa and on 16 March 2000 the applicant applied to the Tribunal for a review of the delegate’s decision.

3. According to the claims that were before the primary decision maker, the applicant stated he was a prominent political activist in the Bangladesh Nationalist Party (“the BNP”) from 1995 and held the position of organising secretary in the Dhanmondi BNP branch.  The applicant claimed he joined the BNP after being “impressed” by the party leader, Begum Khaleda Zia’s “political, social, economical and education programs and her initiative to provide … judicial and press independence from the administration”.  The applicant claimed as part of his political work he organised party meetings, led demonstrations and made speeches.  During the 1996 election campaign the applicant claimed that activists of the BNP’s main rival, the Awami League, had attacked him and harassed his family.  He stated these actions became more extreme after the Awami League won the 1996 election and in March 1998 the League activists attacked his home with the intention of killing him but fortunately, the applicant was not present at the time.

4. In May 1999 the applicant claimed that League activists attacked a peaceful demonstration he was leading and had injured him.  Later he claimed they had laid a false charge against him of destroying public property, being engaged in anti-state activities, and setting fire to the local League office.  The applicant stated he believed he was wanted for arrest by the police, his life was in danger and he would have to escape from Bangladesh.  The applicant stated he obtained a visitor’s visa to Australia with the aid of family members and had left Australia with the help of an agent (Tribunal decision p.5).

Litigation history

1. Ms S Zarucki, 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 14 March 2003 the applicant lodged an application in the Federal Court for review of the Tribunal’s decision.  The matter was subsequently transferred to the Federal Magistrates Court.

   b)On 4 September 2003 Federal Magistrate Raphael dismissed the applicant’s application for review of the Tribunal’s decision.

   c)On 23 September 2003 the applicant filed a notice of appeal in the Federal Court.

   d)On 13 February 2004 His Honour Justice Moore dismissed the applicant’s appeal from the decision of Raphael FM.

   e)On 12 March 2004 the applicant lodged an application for special leave to appeal in the High Court.

   f)On 13 September 2004 the application for special leave was deemed abandoned.

   g)On 27 September 2004 the applicant lodged a further application for special leave to appeal in the High Court.

   h)On 27 April 2005 the application for special leave to appeal was dismissed by their Honours McHugh and Heydon JJ.

   i)On 18 May 2005 the applicant lodged an application in the Federal Magistrates Court for review of the Tribunal’s decision.

Respondent’s application

1. Ms S Zarucki for the respondent, filed written submissions prior to the hearing which contained the following contentions and which were augmented by oral presentation during the hearing:

   a)the doctrine of res judicata applies as a complete bar to certain grounds pleaded in the application;

   b)further or in the alternative, the doctrine of Anshun estoppel precludes the applicant from raising any and all of the grounds pleaded in the application;

   c)further or in the alternative, the proceedings are an abuse of process; and

   d)further or in the alternative, there is no reasonable basis to the application.

Applicant’s submissions

1. The applicant filed a document entitled “Applicant’s Argument Against the Summary Dismissal” 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 in Plaintiff S157/2002 v Commonwealth (“Plaintiff S157/2002”) and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) and the Federal Court decision in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs (“SZFKL”).  Further references were made to major cases in the jurisdiction together with arguments of principle that are found in those authorities.  No direct reference was made to the applicant’s case or parts of the Tribunal’s decision.  Extracts of the cases mentioned were attached to the submission in the following format:

   a)in the case of Plaintiff S157/2002, the title page and two pages of the judgment;

   b)in the case of SAAP, the title page and the first ten paragraphs of the judgment;

   c)in the case of SZFKL, the title page and the page containing the orders; and

   d)transcript of the Tribunal hearing before the presiding member Ms Kelly on 7 January 2003.

Reasons

1. 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 18 May 2005 and seeks review of the Tribunal decision made on 30 January 2003 and handed down on 20 February 2003, which is a period in excess of 26 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 the subject of two Special Leave applications to the High Court, one of which has been deemed abandoned and the other refused. 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.

2. 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.

3. 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.

4. 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 respondent’s application should be upheld.

Conclusion

1. The application filed on 18 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 applicant’s substantive proceeding should be dismissed.

2. 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  31 August 2005