NAOF v Minister for Immigration
[2004] FMCA 840
•2 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOF v MINISTER FOR IMMIGRATION | [2004] FMCA 840 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – notice of objection to competency – notice of objection to competency upheld – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
High Court Rules, Order 69A Rule 13(1)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | NAOF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2878 of 2004 |
| Delivered on: | 2 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter.
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2878 of 2004
| NAOF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment relates to a Notice of Objection to Competency filed by the respondent to the substantive proceedings on 2 September 2004. The respondent moves the Court for orders that the substantive proceedings be dismissed as incompetent and an abuse of process of the Court. The substantive proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed on
19 August 2004 in the Federal Court. On 20 September 2004 by orders of Tamberlin J, the proceedings were transferred to the Federal Magistrates Court.
The respondent has filed and served two affidavits of Angela Margaret Nanson first sworn on 10 September 2004 (“the affidavit of Ms Nanson – September”) and second sworn on 1 November 2004 (“the affidavit of Ms Nanson – November”), both of which have been admitted into evidence.
Background
The applicant, who is a citizen of India, arrived in Australia on
21 October 1998. On 25 October 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 14 March 2001 a delegate of the respondent refused to grant a protection visa and on 12 April 2001 the applicant applied for a review of that decision. The Refugee Review Tribunal (“the Tribunal”) conducted a hearing on 8 May 2002 at which the applicant attended and gave oral evidence. The decision of the Tribunal dated 29 May 2002 affirmed the decision of the delegate not to grant a protection visa. That decision was handed down on 20 June 2002. On 10 July 2002 an application was filed by the applicant in the Federal Court of Australia (“Federal Court”). The application sought review of the decision of the Tribunal pursuant to s.91X of the Act. The applicant was given a pseudonym “Applicant NAOF of 2002”.
On 3 October 2002 the application was heard before Jacobson J. His Honour dismissed the application and handed down a written judgment on 16 October 2002. On 6 November 2002 a Notice of Appeal of the judgment of Jacobson J was filed in the Federal Court. The appeal before the Full Federal Court was heard by their Honours Moore, Mansfield and Stone JJ on 15 May 2003. Their Honours held that the Notice of Appeal identified no arguable error on the part of either the Tribunal or the primary judge. Their Honours stated that the primary judge observed that the applicant had sought a merits review of the Tribunal’s decision. The appeal was dismissed with costs.
On 12 June 2003 an application for Special Leave to Appeal was filed in the Sydney Registry of the High Court of Australia. However, on
15 December 2003, the matter was deemed to have been abandoned pursuant to Order 69A Rule 13(1) of the High Court Rules.
On 19 August 2004 an application under s.39B of the Judiciary Act 1903 (Cth) was filed in the Federal Court. The applicant sought review of the same Tribunal decision made on 29 May 2002. On
20 September 2004 the proceedings were transferred to the Federal Magistrates Court.
Present proceedings
The applicant’s application filed on 19 August 2004 relied on the following two grounds:
1.The decision of the Refugee Review Tribunal involved the error of law being incorrect application of the law to the facts as found by the person who made the decision.
2.I was denied procedural fairness when the Tribunal member did not believe in my submissions or oral evidence. The RRT member used old and outdated materials to justify his decision. The member based his whole decision on one-sided information prepared for denying the application for people coming from Andhra Pradesh.
Neither of these two grounds contained any particulars.
The application was supported by an affidavit of the applicant which contained the following statements made on oath:
“1The Refugee Review Tribunal made decision on 29.5.2002. The RRT handed down decision on 20.6.02. The Refugee Review Tribunal affirmed the decision of the D.I.M.I.A. not to grant protection visa.
I am disagreed with the decision of the RRT. The RRT made decision without giving any importance to my evidence, which I presented at the time of hearing.
The member did not believe of the incident of my mother beaten by police custody 1982. The member not believes that my father was killed.
The police was after me and because of that I left my country. I tried to relocate in the other parts of India but did not work.
I was forced to use my money to give it to Airport police and to leave the country.
I do believe that if I am compelled to go back to my country I will be persecuted.
The RRT did not account the fear of persecution and made decision without considering this issue in his decision. I made an application 39B Judiciary Act.”
The solicitor for the respondent filed a Notice of Objection to Competency on 2 September 2004 in the following form:
“The respondent objects to the jurisdiction of this Court to determine this application for an order under the Judiciary Act 1903 under the grounds that the application relates to a privative clause decision and has not been filed within 28 days of the applicant being notified of the said decision as is required by s.477(1)(a) of the Migration Act 1958 (Cth).”
Submissions
The respondent’s solicitor, Ms Nanson, filed written submissions which have been of assistance in the resolution of this matter and are stated as follows:
“Notice of Objection to Competency
(i)Pursuant to s.477(1A) of the Migration Act, an application for judicial review must be filed within 28 days of the date of notification of the relevant Tribunal decision. The present application is filed more than 2 years following that decision during which time it has been fully considered by the Federal Court before a single judge and on appeal.
(ii)The applicant also commenced proceedings before the High Court but chose not to pursue those proceedings.
(iii)Both the decisions of the Federal Court upheld the decision of the Tribunal in which it found no error. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limitation under s.477(1A) of the Migration Act should not apply
(iv)The applicant has not provided any particulars in relation to the error of law claimed in ground 1. Ground 2 appears to seek merits review of the decision of the Tribunal.
(v)The respondent relies on the decision of Driver FM in SZBML v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 431, which dismissed an application for review as incompetent, which decision was upheld by Bennett J. [2004] FCA 1195, and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498 per Driver FM.
(vi)It is submitted that it was open to the Tribunal to reach the conclusions it did as set out in its decision and that there is no basis on which jurisdictional error may be established as a consequence. Accordingly, the respondent submits the decision of the Tribunal is a privative clause decision and that the objection to competency should be upheld.
(vii)In the alternative, the respondent Minister moves on the Application for summary dismissal filed in the Federal Magistrates Court on 24 June 2004. The orders sought are that the proceedings be dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules as an abuse of the process of the Court.”
The applicant appeared self represented with the aid of an interpreter. The applicant had not previously lodged any written submissions in defence of the Notice and declined the invitation to make any oral submissions.
I am satisfied the applicant was notified of these proceedings, initially when she appeared before me at a directions hearing on 24 September 2004, at which time the date of today’s proceedings was discussed and the applicant signed Short Minutes of Orders by consent, and again by letter from the Australian Government Solicitor dated 29 September 2004 to the applicant notifying her of the hearing before me on
2 November 2004 at 11.00 a.m. (the affidavit of Ms Nanson – November). Contained within that letter are the three main grounds which would be moved in this Court today seeking a dismissal of the substantive proceedings.
The applicant was invited to respond to the submissions made by the respondent however that invitation was declined.
I am cognisant of the obligation of this Court to the self represented litigant and the obligation that I have to independently consider whether any arguable case could be made out by the applicant: Yo Han Chung v University of Sydney & Ors. However, I am faced with the situation where the applicant seeks to proceed in the substantive proceedings with unparticularised and vague grounds of review. This is further frustrated by the history of the matter which indicates that the decision of the Tribunal has already been through the review system provided within the Courts and the previous proceedings have failed at each level.
The applicant appears at all scheduled hearings and directions unrepresented and declining all invitations to support her case. The only substantive statement that she made from the bar table was that she desired to stay within Australia.
Conclusion
I am satisfied on the evidence presented by affidavit and submissions made by Ms Nanson that the grounds in this Notice are made out and must succeed. I have heard no submissions to contradict any of the arguments put forward by the respondent. Consequently, the Objection to Competency is upheld and the application for judicial review is dismissed as incompetent.
The applicant should pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 2 November 2004
0
3
0