NATC of 2002 v Minister for Immigration

Case •

[2008] FMCA 745

•

28 May 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATC OF 2002 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 745
MIGRATION – RRT decision – multiple applications for judicial review – unexplained delay – no arguable case – abuse of process – application dismissed at first court date.
Migration Act 1958 (Cth)
ApplicantNATC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1614
ApplicantNATC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 218
NATC v Minister for Immigration [2003] FMCA 22
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 558
Applicant: APPLICANT NATC OF 2002
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1069 of 2008
Judgment of: Smith FM
Hearing date: 28 May 2008
Delivered at: Sydney
Delivered on: 28 May 2008

REPRESENTATION

Counsel for the Applicant: In Person
Counsel for the First Respondent: Ms S Hanstein
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.

  2. The applicant must pay the first respondent’s costs in the sum of $1,500.

  3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 1 August 2002 reference N00/31937, or for review of the decision of the delegate of the first respondent dated 19 January 2000, or for review of any other administrative decision or action by any person or Tribunal relating to the application for a protection visa received on 29 November 1999, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1069 of 2008

APPLICANT NATC OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. This is an application filed on 28 April 2008, which seek orders under s.476 of the Migration Act in respect of a decision of the Refugee Review Tribunal handed down on 1 August 2002.

  2. The Tribunal affirmed the decision of a delegate to refuse the applicant a protection visa.  In its reasons, it explained that the applicant had not attended a hearing to which he was invited by the Tribunal.  After reviewing the file, it arrived at the “firm opinion that he has invented all his claims of harm and threatened harm in order to launch an application for protection visa”.

  3. The applicant has previously brought two separate sets of litigation, challenging the legality of the Tribunal's decision.  Raphael FM dismissed his first application on 31 January 2003 (see NATC v Minister for Immigration [2003] FMCA 22), and an appeal from that decision was dismissed by Hely J (See NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 558). An application for special leave was dismissed by the High Court, when the applicant did not attend an oral hearing on 18 June 2004.

  4. The applicant then commenced a fresh set of proceedings in the High Court under s.75(v) of the Constitution. The application for orders nisi was remitted to the Federal Court, and was refused by Allsop J on 6 December 2004. His Honour was not persuaded that there was any basis for the re‑agitation of the applicant's complaint about the Tribunal's decision (see ApplicantNATC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1614).

  5. The applicant applied for leave to appeal.  This was refused by Stone J on 7 March 2005, when the applicant did not attend the hearing (see ApplicantNATC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 218).

  6. He has now brought his present application, attempting a third time to challenge the Tribunal's decision.  His affidavit does not explain the three year delay, nor has the Minister explained to the Court why the applicant has been allowed to remain in the country. 

  7. The Minister has filed a response which contends that the application is incompetent under s.477(1) of the Migration Act. However, authorities binding upon me render that contention difficult.

  8. The Minister also asks for the application to be summarily dismissed on the ground that it does not raise an arguable case for the relief claimed.  The applicant has been put on notice that the Minister would move for such an order today at the first Court date. 

  9. In my opinion, the application clearly does not raise an arguable case.  The applicant has adopted precedents which are entirely unhelpful in identifying jurisdictional error, nor has he explained any reason why he should be allowed to re‑litigate questions of jurisdictional error, even if there is not a res judicata which estops him from that attempt.  In my opinion, his application is clearly doomed to fail on principles of Anshun estoppel, and as an abuse of process. 

  10. The applicant today sought only to explain his return to Court on the ground that he still feels that there are “big problems” facing him if he returns to Bangladesh.  However, these concerns do not justify the bringing of hopeless litigation in this Court.

  11. I am not satisfied that the application raises an arguable case for the relief claimed, and consider it appropriate to dismiss it under r.44.12(1)(a).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  6 June 2008

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