NAOX v Minister for Immigration

[2007] FMCA 2054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2054

MIGRATION – Review of Refugee Review Tribunal decision – dismissal of application at first court date – previous proceedings by applicant – no prospect of success and abuse of process.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.474

NAOX v Minister for Immigration [2004] FMCA 55
NAOX & Anor v Minister for Immigration & Anor [2006] FMCA 434
NAOX v Minister for Immigration [2004] FCA 776
NAOX v Minister for Immigration [2005] HCATrans 935

Applicant: NAOX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3694 of 2007

Judgment of: Driver FM

Hearing date: 6 December 2007

Delivered at: Sydney

Delivered on: 6 December 2007

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms N Tondl
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there be an immediate show cause hearing under rule 44.12.

2. The Court directs that the transcript of today’s hearing be obtained and placed on the court file.

3. The application is dismissed, pursuant to rules 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

4. No further application by this applicant to review any decision under the Migration Act 1958 (Cth) relating in any way to either his protection visa application made on 17 January 2001 or the protection visa application made on 4 March 1999 be accepted for filing in this Court except by leave of a Federal Magistrate.

5. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.

6. The Court directs that the Minister is to arrange to have the orders made today entered and the Minister is to serve a sealed copy of these orders on the applicant by ordinary pre-paid post at his last known address for service.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3694 of 2007

NAOX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 29 November 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). Also filed on the same day is an affidavit by the applicant annexing a copy of the Tribunal decision which was signed on 13 November 2007 and apparently sent to the applicant the following day. The Tribunal found that it did not have any jurisdiction in the matter because the delegate's decision had previously been reviewed by the Tribunal and the Tribunal's decision had been found to be free from jurisdictional error.

2. The application before the Court advances various grounds of review, but the decision of the Tribunal that it lacked jurisdiction in the circumstances is undoubtedly correct. The Tribunal refers to various decisions by this Court and the Federal Court that establish with certainty the correctness of the Tribunal's view. In consequence, it appeared to me that the application before the Court was doomed to fail and I ordered an immediate show cause hearing at today's first court date.

3. The applicant sought to avoid a hearing today by claiming illness. He faxed a letter to the Court this morning saying that he would not be able to attend the hearing today due to sickness. He did not in that letter disclose the nature of his sickness. He attached what purports to be a medical certificate from Dr Mamun Mohiuddin Chowdhury dated 5 December 2007. That certificate relevantly states that on 5 December 2007 the doctor examined the applicant. The doctor states that, in his opinion, the applicant is unfit for his normal work duties from 5 December 2007 to 7 December 2007, inclusive, due to an unspecified medical condition.  The medical certificate is not directed to anyone in particular.

4. When the matter was called this morning the applicant failed to appear. The applicant had provided a mobile telephone number and he was contacted on that number. The applicant stated that he had a fever and was too sick to come to court.

5. I asked the applicant about the medical certificate. He stated that he did not disclose to the doctor that he was to attend court today. I asked the applicant what his employment was and he said that he is unemployed. He was unable to explain to my satisfaction why in the circumstances he had obtained from the doctor a medical certificate stating that he is unfit for work. I was concerned that on the applicant's own admission he had not been open and honest with the doctor in disclosing his court commitment today.

6. I concluded that the medical certificate and the applicant's asserted illness were not a sufficient reason to excuse him from attendance at court today. I invited the applicant to attend and participate by telephone. He stated repeatedly that he did not wish to do so. Nevertheless, he did remain on the line and, as apparent from the transcript of today's hearing, he did participate.

7. The Minister seeks the summary dismissal of the application before the Court pursuant to rule 13.10(a) and (c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I am satisfied that the application should be dismissed on both of those bases.

8. The decision of the Tribunal discloses that the applicant has somehow managed to make two protection visa applications. The first protection visa application was made on 4 March 1999. The Tribunal dealt with the delegate's decision refusing that application on 21 December 2004 and handed down its decision on 14 January 2005. A challenge to that decision of the Tribunal was unsuccessful: NAOX & Anor v Minister for Immigration & Anor [2006] FMCA 434. That protection visa application and that decision of the Tribunal are not directly relevant to this proceeding. It is nevertheless strange that the applicant was able to make a second protection visa application on 17 January 2001 while his first protection visa application was still being dealt with. The circumstances of that curiosity ought to be investigated by the Minister's Department.

9. The protection visa application made on 17 January 2001 is relevant for the purposes of today's hearing. The application was refused by a delegate on 1 March 2001. The delegate's decision was notified to the applicant by letter on the same day. The applicant sought review of the delegate's decision before the Tribunal on 11 March 2001. The Tribunal affirmed the delegate's decision on 24 March 2003. The applicant applied for judicial review of that Tribunal decision on 28 April 2003 and the application was transferred from the Federal Court to this Court. I dealt with that application on 6 February 2004: NAOX v Minister for Immigration [2004] FMCA 55. Relevantly, at paragraph 5, I noted that the applicant had asserted that procedures required by law under the Migration Act 1958 (Cth) (“the Migration Act”) were not observed. I stated that it did not appear to me that any procedural requirements of the Migration Act were breached. That is relevant to the assertion now made by the applicant that he was not properly notified of the delegate's decision. I accept the Tribunal decision that the delegate's decision was properly notified. At paragraph 13 of my decision I found that there was no jurisdictional error in the decision of the Tribunal. At paragraph 14 I found that decision to be a privative clause decision. A consequence of that finding was that s.474 of the Migration Act thereby prevented further review of that Tribunal decision by this Court.

10. On 24 February 2004 the applicant appealed against my decision to the Federal Court. On 15 June 2004 Stone J dismissed that appeal: NAOX v Minister for Immigration [2004] FCA 776. At paragraph 6 of her judgment, her Honour found that the applicant had not been able to point to any reviewable error in my decision or the decision of the Tribunal. Her Honour stated that she had carefully reviewed both decisions, but was not herself able to identify any reviewable error. It follows that the Federal Court has confirmed that the decision of the Tribunal, the subject of the earlier proceedings, is a privative clause decision. I am bound by that decision of the Federal Court.

11. The applicant sought special leave to appeal to the High Court on 13 July 2004. On 17 November 2005 the High Court refused to grant special leave: NAOX v Minister for Immigration [2005] HCATrans 935. Hayne and Callinan JJ said in that proceeding that there was no reason to doubt the correctness of the decisions below.

12. The applicant was undeterred. He lodged a further application to review the delegate's decision on 25 November 2005. The Tribunal decided, undoubtedly correctly, on 27 February 2006 that it did not have jurisdiction in the matter as it had already discharged its functions under the Migration Act to review the decision.

13. On 22 March 2006 the applicant applied in this Court to review that Tribunal decision. The Court's file reference in that matter is SYG851 of 2006. I have obtained at short notice documents from that court file. For some reason which I do not understand the applicant was in that matter allocated a different pseudonym of SZINV. Nevertheless, it is clear that it was the same applicant and it is also clear from the affidavit material filed on behalf of the Minster that the application should have been dismissed as an abuse of process. That did not occur. It did not occur because the application came before a Registrar on the first court date and the applicant did not appear. The application was dismissed on account of the applicant's non-appearance pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules.

14. The applicant should have been left in no doubt whatsoever that any further attempt to return to the Tribunal to review the decision of the delegate made on 1 March 2001 would be fruitless. Nevertheless, that is precisely what he did. He should have been left in no doubt that the inevitable outcome would be a finding that the Tribunal lacked jurisdiction. That is precisely what occurred. In repeatedly returning to the Tribunal the applicant abused the Tribunal's process.

15. The applicant should also have been in no doubt whatsoever that any further appeal to this Court would be fruitless. I strongly suspect that he was indeed aware that his present application was doomed and that his reluctance to appear today confirms that.

16. I find that the present application before the Court is an abuse of this Court's process. Such abuses should be promptly and firmly dealt with. There is no possibility of the application before the Court succeeding.

17. Accordingly, I dismiss the application pursuant to rules 13.10(a) and (c) of the Federal Magistrates Court Rules.

18. The Court should now, and unfortunately somewhat belatedly, attempt to deter the applicant from making further such applications. I will order that no further application by this applicant to review any decision under the Migration Act relating in any way to either his protection visa application made on 17 January 2001 or the protection visa application made on 4 March 1999 be accepted for filing in this Court except by leave of a Federal Magistrate.

19. The applicant should pay the Minister's costs of this present proceeding on an indemnity basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $500.

20. I will further direct that the Minister arrange to have the orders made today entered and that the Minister serve a sealed copy of those orders by ordinary pre-paid post to the applicant at his last known address for service.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 December 2007