NAOP v Minister for Immigration
[2005] FMCA 888
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOP v MINISTER FOR IMMIGRATION | [2005] FMCA 888 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – Application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – no reviewable error. PRACTICE & PROCEDURE – Notice of Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – abuse of process – costs – indemnity costs – circumstances justifying order. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477 |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 601 NAOP v Minister for Immigration [2003] FMCA 572 NAOP v Minister for Immigration [2004] FCA 437 |
| Applicant: | NAOP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1087 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 June 2005 |
| Date of Last Submission: | 9 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The application is not competent.
The application is an abuse of process.
The Applicant is to pay the Respondent’s costs on an indemnity basis fixed in the sum of $3,000.00 and I allow three (3) months to pay.
That the Applicant is restrained from filing any further applications in this Court seeking to review the decision of the Refugee Review Tribunal on 7 March 2003 and handed down on 27 March 2003 with out the leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1087 of 2005
| NAOP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision made by the Refugee Review Tribunal on 7 March 2003 and handed down on 27 March 2003. The decision of the Tribunal was to affirm a decision by the delegate of the Minister not to grant a protection visa to the applicant. The applicant seeks a declaration that the decision of the Refugee Review Tribunal was not a privative clause decision within the meaning of s.474 of the Migration Act. He also seeks a declaration that the decision was made in excess of jurisdiction and is therefore void and of no effect. In addition, he seeks an order that the Tribunal consider the matter before it according to law.
The respondent opposes this application. The respondent has filed a notice of objection to competency. That notice which was filed on
12 May 2005, says that the respondent objects to the jurisdiction of this Court to try the application. The grounds of the notice of objection to competency is that the application is said to contravene s.474(1A) of the Migration Act because the application has been made more than
28 days after the applicant was notified of the decision.
The respondent says that the decision is a privative clause decision as set out in s.474(2) of the Migration Act. The respondent also says that the applicant was notified of the decision on 27 March 2003 but this application was not made until 28 April 2005, which is way outside
28 days.
I have read the respondent's outline of submissions in support of the notice of objection to competency and I have read the applicant's outline of submissions. I have also read an affidavit sworn
24 May 2005 by Angela Louise Radich, solicitor. In this affidavit the respondent makes it quite clear that the applicant has previously made an application for review of this decision by the Refugee Review Tribunal. That application was filed in time. It was filed on
23 April 2003. The application and a supporting affidavit were filed in the Federal Court and that application was transferred to the Federal Magistrates Court on 12 May 2003. The application was heard by Driver FM in this Court on 8 December 2003. The citation to that decision is [2003] FMCA 572. The Federal Magistrates Court dismissed the application for review.
The applicant then sought to appeal to the Full Court of the Federal Court. The appeal was heard by Whitlam J exercising the delegated jurisdiction of the Full Court on 6 April 2004. His Honour dismissed the appeal with costs. The applicant then sought special leave to appeal to the High Court of Australia. On 8 April 2005 Gummow and Kirby JJ dismissed the application for special leave with costs. I have been provided with copies of the decisions of the Federal Magistrates Court, the Federal Court and the High Court. After the High Court dismissed the application for special leave to appeal, the applicant lodged a further application in the Federal Magistrates Court on
28 April 2005. That is the application that is before me today.
I have previously set out the declaration and orders that are sought in that application. The applicant set out five grounds for his application. First, that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question, and did not take into consideration the oral evidence that was given at the RRT hearing. Second, that the Tribunal denied the applicant natural justice in that the Tribunal was biased or in that there was an apprehension of bias in the making of that decision. Third, that the Tribunal in its findings and reasons harshly mentioned that the applicant's history did not inspire confidence in his persecution. The applicant says:
I do not accept this comment
Fourth, the applicant says that the Tribunal denied him procedural fairness by ruling out his claim as fabricated without proper investigation. Fifth, the applicant says:
The Tribunal did not use the country information as specific. However, general information gathered by the Tribunal considered to weigh against my case in the final outcome.
The Tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look.
Those are the grounds upon which the applicant relies.
In my view, the applicant has not raised any fresh matters from his earlier application. The first ground given in his application is no more than a complaint about the merits of the RRT decision. I note that in paragraph (3) of the decision of Driver FM on 8 December 2003 his Honour said that he explained to the applicant that it is not the function of the Court to review the merits of the RRT decision. The third ground and the fifth ground in the application are no more than a contest of the merits of the RRT decision. As far as the allegations of bias are concerned, I note that this issue was raised in the proceedings before Driver FM on 8 December 2003. His Honour dealt with that claim in his decision. As far as the allegation of procedural fairness is concerned, I note that his Honour dealt with that claim as well.
In the applicant's written submissions he likens the facts in his case to that contained in the High Court decision Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 601.
His Honour noted at paragraph 4 of the decision of 8 December 2003 that a claim of procedural fairness based on that High Court decision had been raised but the applicant was not able to expand upon the claim in oral argument. Ms Radich for the respondent has drawn my attention, quite correctly, to the fact that the applicant's summary of argument in the application for special leave to appeal to the High Court of Australia relied on Muin (supra) as well. I note that the decision of the High Court was that the facts in the applicant's case are not analogous to those involved in Muin (supra).
The simple fact is that this application is an abuse of process.
The applicant has been to the Refugee Review Tribunal and sought a review because he did not like the outcome. He sought a review of that decision as he was entitled to do. His application for review was dismissed by the Federal Magistrates Court. He appealed against that decision to the Full Court of the Federal Court of Australia as he was entitled to do. His appeal was dismissed. He sought special leave to appeal to the High Court of Australia as he was entitled to do.
That application for special leave to appeal was dismissed. What he has now sought to do, some 20 days after his application for special leave to appeal was dismissed by the High Court is to attempt to start the same proceedings again. He is not entitled to do that.
The arguments raised are essentially the same arguments raised in the earlier proceedings. This application is more than a year out of time and it is an abuse of process. It would appear to me that these proceedings have been brought for no other purpose than to delay any moves by the respondent Minister to have the applicant removed from Australia.
The application is dismissed. The application is not competent as the Court has no jurisdiction to hear it. The application is dismissed as an abuse of process.
The respondent seeks an order for costs and seeks an order which if calculated on a party and party basis would be $2200 but on an indemnity basis would be $3000. The applicant says that he does not have the funds to pay that as he is only working two days a week as a cleaner and consequently he does not have a large income.
I understand that a shortage of funds would create a difficulty for a party if the party is required to pay a significant amount of legal costs, although as costs follow the event, it is not normal a reason in this jurisdiction why an order for costs should not be made.
The appropriate way of giving some consideration to the applicant's financially straitened circumstances would be by giving him time to pay.
The application was an abuse of process; it should never have been brought. If the applicant had been properly advised by a lawyer he would not have continued with these proceedings in the hope of any chance of success. I am mindful of the principles set out in ColgatePalmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225; 118 ALR 248 and in my view, this falls clearly within one of the grounds.
The other matter that I note with concern is that these proceedings, which I have found to be an abuse of process, were commenced only 20 days after the High Court made a decision to refuse special leave to appeal. The Court has a duty to take steps to prevent its own process being abused because the time taken to deal with unworthy matters is time that cannot then be used to deal with matters where there is an arguable case.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 21 June 2005
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