NAUE v Minister for Immigration
[2006] FMCA 262
•27 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAUE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 262 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application dismissed as not disclosing an arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, ss.476, 486D |
| Applicant: | NAUE |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3589 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 27 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Carter Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed with costs, pursuant to rule 44.12(1)(a) and rule 44.15(1) of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3589 of 2005
| NAUE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application was filed on 7 December 2005. The decision of the RRT was handed down on 8 July 2003. The applicant is deemed to have been notified of the RRT decision on 1 December 2005. On that basis the application was made within time. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The matter came before me on a first court date on 23 January 2006. At that time I dismissed the application insofar as it related to a decision of the Minister's delegate. I made that order because, as from 1 December 2005, this Court lacks jurisdiction to review primary decisions, whether or not such decisions are privative clause decisions[1]. A primary decision is relevantly a decision of a delegate which is reviewable by the RRT. In this case there is no doubt that the delegate's decision was a primary decision.
[1] s.476(2)(a) and s.476(4) of the Migration Act 1958 (Cth).
The applicant at the first court date told me that his application also extended to the decision of the RRT. I listed the matter for hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) in order to decide whether the application discloses an arguable case in relation to the RRT decision.
The Minister has filed an amended response on 30 January 2006 on which she relies. Written submissions have also been prepared on behalf of the Minister. Those were filed on 23 February 2006. In addition, I received as evidence the affidavit of Jennifer Bautista made and filed on 6 January 2006. Nothing further has been filed by the applicant.
In his oral submissions, the applicant asserts that the RRT erred in not giving proper attention to documents he had submitted in support of his review application or protection visa application. His concerns about the RRT decision have been addressed previously. I accept from the affidavit of Jennifer Bautista that the RRT decision has previously been judicially reviewed by the Federal Court both at first instance and on appeal. I adopt for the purposes of this judgment the chronology annexed to Ms Bautista's affidavit:
BACKGROUND 11 February 1975 Applicant born in Bangladesh 21 August 2001 Applicant arrived in Australia DIMIA 4 September 2001 Applicant lodged application for a protection visa 14 June 2002 Delegate of respondent refused application for a protection visa RRT 1 July 2002 Applicant applied to RRT for review of delegate’s decision 6 May 2003 RRT hearing 8 July 2003 RRT’s decision handed down Federal Court N896 of 2003 15 July 2003 Application for judicial review of RRT decision lodged 6 February 2004 Substantive application dismissed by Bennett J Full Court of the Federal Court N216 of 2004 24 February 2004 Notice of appeal lodged 5 May 2004 Appeal dismissed by Ryan, French and Nicholson JJ High Court S199 of 2004 28 May 2004 Application for special leave lodged 8 February 2005 Certificate of deemed abandonment lodged High Court S49 of 2005 21 February 2005 Application for special leave lodged 17 November 2005 Application for special leave dismissed by Hayne and Callinan JJ. Federal Magistrates Court SYG3589 of 2005 7 December 2005 Application for judicial review of Delegate’s decision lodged.
Both Bennett J and the Full Federal Court dismissed the challenge to the RRT decision. Special leave to appeal to the High Court was refused. The Full Federal Court was unable to identify any jurisdictional error in the RRT decision. In refusing special leave, Hayne J said that the decision of the Full Federal Court is not attended by doubt. In my view, the question of whether the RRT decision was a privative clause decision has been conclusively answered in the affirmative. Having been conclusively answered, that question cannot be entertained any further in this Court. On that basis alone the application is doomed to fail and should be dismissed as not disclosing an arguable case.
I have nevertheless considered the grounds contained in the application. Ground 1 asserts that the applicant was not notified of the decision. In respect of the RRT decision that is obviously false because the decision has previously been reviewed by the Federal Court. The applicant must have been notified of the decision. Ground 2 simply asserts error on the part of the delegate. Ground 3 is an unparticularised assertion of error which the applicant was unable to develop during oral argument today. Ground 4 is an application for an extension of time that the applicant did not require. Ground 5 is, on its face, a response to an anticipated argument that the application is vexatious and an abuse of process. Further grounds were advanced, being an unparticularised assertion of error of law and a repetition of previous assertions of error in the form of notification of the decision and the decision of the delegate. In the absence of particulars, I can see no substance in any of these grounds.
I note further that the applicant has only partially complied with his obligation of disclosure under s.486D of the Migration Act 1958 (Cth) (“the Migration Act”). That section provides that a person must not commence a proceeding in this Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. The application discloses the judicial review proceeding at first instance before the Federal Court but not the appeal, nor the special leave application to the High Court.
The Migration Act does not contain any sanction for a breach of s.486D. It does not appear to deprive the Court of jurisdiction in the case of a breach. However, a breach of the section should be taken into account by the Court in considering the discretionary provision of relief.
I have come to the view that the application should be dismissed as disclosing no arguable case both on the face of the application and having regard to the earlier judicial review proceedings. The applicant's inadequate compliance with s.486D of the Migration Act would be a factor to take into account, even if jurisdictional error had been established.
I order that the application be dismissed with costs, pursuant to rules 44.12(1)(a) and 44.15(1). The prescribed costs are $2,500.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 March 2006
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