NAPD v Minister for Immigration
[2006] FMCA 59
•16 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 59 |
| MIGRATION – RRT decision – previous judicial review proceedings – new application for judicial review dismissed as abuse of process. |
Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001, r.13.10(c)
Migration Act 1958 (Cth), ss.474(1), 477(1A), 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
NAPD v MIMIA [2005] HCATrans 836
NAPD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1320)
NAPD v Minister for Immigration [2004] FMCA 106
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
| Applicant: | NAPD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3052 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 16 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Carter |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $3,000.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 16 April 2003 reference N01/36939 or for review of the decision of the delegate of the first respondent dated 2 January 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3052 of 2005
| NAPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The principal application in this matter was filed on 20 October 2005. It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 March 2003 and handed down on 16 April 2003. The Tribunal affirmed a decision of a delegate made on 2 January 2001 which refused an application by the applicant for a protection visa. He lodged that application on 16 November 2000, shortly after arriving from his country of nationality, Bangladesh.
The application is brought under the Court’s jurisdiction previously conferred by s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). That section was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The application was given a first court date on 23 November 2005. On that occasion the applicant appeared, and I gave directions for the listing of the matter today on a foreshadowed application by the Minister for the summary dismissal of the application. I am satisfied that the applicant has been served with the documents in support of that application and has had a sufficient opportunity to prepare his arguments for today.
The Minister’s application invokes Federal Magistrates Court Rule 13.10(c). It contends that the proceeding is an abuse of process due to a previous history of litigation by the applicant in relation to the Tribunal’s decision and due to findings which were made in those proceedings. I propose to consider under that rule whether the applicant’s application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
The decision of the Refugee Review Tribunal addressed claims by the applicant that he was unwilling to return to Bangladesh since he feared persecution by the Awami League government because he had been an activist in the BNP Party. The Tribunal noted that by the time of its decision there was a BNP‑led government, and it was not satisfied that the applicant faced any risk of persecution because of his past opposition to the Awami League. It also addressed claims by the applicant that he would be harmed by the BNP government itself, and that if he returned he faced a false charge of murder for which he had been sentenced in his absence. The Tribunal did not accept that there was a real chance that he would be harmed by the then government, nor that he had been charged or convicted of murder.
The applicant filed in the Federal Court an application for judicial review of the Tribunal’s decision. This was remitted to this Court and was determined by Driver FM after a final hearing in which the applicant was represented by Mr Zipser of counsel. His Honour dismissed the application on 3 March 2004 (see NAPD v Minister for Immigration [2004] FMCA 106). He addressed three grounds argued by the applicant’s counsel and did not accept them. He concluded:
[23]It follows that there was no jurisdictional error in the decision of the RRT. The decision of the RRT is therefore a privative clause decision. The application must be dismissed.
His Honour’s reference to “a privative clause decision” must be understood as a reference to s.474(1) as interpreted by the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. This requires that a Tribunal decision be found to be affected by jurisdictional error before the Court has the power to grant relief.
The applicant appealed to the Federal Court of Australia, where Hill J exercised the jurisdiction of the Full Court. He dismissed the appeal on 5 October 2004, after a full hearing in which the applicant was represented by Mr J Young of counsel. The applicant’s counsel re‑argued two grounds which had failed before Driver FM, and the arguments were similarly unsuccessful. His Honour noted that it was “necessary for the appellant to show jurisdictional error on the part of the Tribunal”, and did not find such error in the Tribunal’s conclusions (see NAPD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1320).
The applicant then brought two applications for special leave to appeal to the High Court. The first was deemed abandoned on 21 June 2005. The second was dismissed on 7 October 2005 (see NAPD v MIMIA [2005] HCATrans 836). When giving the reasons of himself and Heydon J, McHugh J said:
The applicant’s special leave application complained of errors of law and jurisdictional error. The applicant also relied on Muin v Refugee Review Tribunal (2002) 190 ALR 601, but did not demonstrate the necessary factual basis. The appeal has no prospects of success.
Within 28 days of that decision, the applicant commenced his present application. It follows a precedent and is without particulars which allow it to be meaningfully applied to the decision of the present Tribunal. So far as I can detect, the arguments it presents are all arguments which, if they had any merit, could reasonably have been presented to the previous Courts. In this category, I include an unparticularised reference to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, which had been delivered prior to the applicant’s last application for special leave.
In his submissions to me today, the applicant has not identified a new argument for judicial review which was not previously presented. He claimed that his refugee claims would be given more strength if the matter were remitted to the Tribunal, due to further changes in Bangladesh and further documents which he would present. However, this argument has no prospect of gaining him a further hearing by the Tribunal. Even if he had a new argument with merit, he did not present any special circumstances which would justify a Court allowing fresh arguments to be raised. I therefore think his application has hopeless prospects of success, because it would be met by an Anshun estoppel (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
There is also a more absolute basis for characterising the present application as doomed to fail. This is by reason of a notice of objection to competency which has been filed in the present proceeding, relying on the provisions of s.477(1A) as they apply to this case. That provision raises a 28 day time limit on proceedings for judicial review in relation to a Tribunal decision which is “a privative clause decision”. The Minister contends in her motion that this issue has been finally and conclusively determined against the applicant by Driver FM’s judgment which was upheld by Hill J. I accept that contention also.
For the above reasons, I consider that the Minister has made out grounds for the summary dismissal of the application, and in all the circumstances I consider that it is appropriate to make that order.
The Minister’s application also seeks an order preventing the Registry of this Court receiving further applications for review in relation to decision‑making on the applicant’s protection visa application, and I think it is appropriate to make such an order drafted in broad terms. The applicant in his submissions to me has made it clear that he has brought this application for the purpose of protracting his lawful stay in Australia and without regard to its merits. Assessing his submissions and the documents he has filed in this application, I consider it likely that he will continue to try to involve the Minister in litigation regardless of the merits of his claims.
The Minister also seeks costs on an indemnity basis, and I consider that it is appropriate to order this.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 January 2006
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