NAVW v Minister for Immigration, Multicultural and Indigenous Affairs

[2004] FCA 197

FEDERAL COURT OF AUSTRALIA

NAVW v Minister For Immigration, Multicultural And Indigenous Affairs [2004] FCA 197

NAVW v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1446 OF 2003

GYLES J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1446 OF 2003

BETWEEN:	NAVW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant is to pay the respondent’s costs assessed at the sum of $1000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1446 OF 2003

BETWEEN:	NAVW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter on 11 December 2003 it was ordered that the applicant file and serve an amended and fully particularised application and any evidence upon which he proposed to rely on or before 21 January 2004 and it was also ordered that the matter and a notice of objection to competency be listed for directions at 9.30 am this morning.  When the matter was called on for directions it seemed to me that if there was any substance to the objection to competency it should be heard as a matter of priority.  At that stage the applicant informed me that he had taken the course of approaching the Minister first rather than come to this Court as he did not know that he had to do that.

2. Under the circumstances I stood the matter down until later in the morning in order that the respondent could consider the position.  When the matter returned to me it was submitted that it was appropriate that the matter proceed today for hearing of the argument for dismissal of the proceedings.  It was put that there were various bases for seeking dismissal.  I primarily sought submissions as to what was called the objection to competency and that has come on for hearing this afternoon, the applicant having again confirmed that he had been out of time in coming to this Court.

3. The application itself to the Court makes clear on its face that the applicant is out of time. The affidavit in support annexed the Refugee Review Tribunal decision and said that it was handed over on the date it bore, that is 17 March 2003 and the application on its face was filed on 18 September 2003. Section 477(1) of the Migration Act 1958 provides that an application to this Court under section 39B of the Judiciary Act in respect of a privative clause decision must be made within 28 days of the notification of the decision.

4. A privative clause decision is defined in s 474 and on its face the decision of the Refugee Tribunal is clearly a privative clause decision.  On the face of it this application is out of time and there is no power in the Court to extend that time.

5. No doubt because of some comments that have been made in superior courts as to what is and what is not a privative clause decision, the solicitor for the respondent has taken me to some salient features of the history of the matter as appear from the court book.  The first is that the Tribunal had advised the applicant by letter of 23 December 2002 that it was unable to make a decision in his favour on the information which had been provided alone and had invited him to give oral evidence and present arguments in support of his claims.  The letter nominated a particular date and time.  The response that was received to that invitation indicated that the applicant did not wish to come to a hearing. 

6. The decision of the Tribunal in those circumstances is not surprising.  It was unable to be satisfied on the basis of the evidence that the applicant was indeed involved in the affairs in Pakistan that he claimed, nor that cases had been registered against him, nor that there are orders for his immediate arrest.  The Tribunal was therefore unable to be satisfied that the applicant had a well founded fear of being persecuted for a Convention reason.

7. The solicitor for the respondent points out that the application to the Court and the affidavit in support are quite without any particulars that would indicate any bona fide attack upon the decision on any jurisdictional basis.  She also relies upon the fact that the orders which were made for provision of an amended and fully particularised application and evidence have simply not been complied with.

8. Under the circumstances it seems to me clear that the decision is a privative clause decision and that the time limits apply.  Furthermore, I am satisfied that there is no bona fide ground of attack upon the decision revealed by the application and there is no disclosure of any proper cause of action.  Under those circumstances the appropriate course and in my view the only course I have available to me is to dismiss the application.

9. My first reaction was to think that costs should be limited because where the Act is clear, and where the person is unrepresented, once it appeared that the application was out of time then it should have been pointed out more clearly to him, or an application made to the Court to strike out the proceedings as misconceived before costs of preparation were incurred.  It has been put that the applicant elected to take advantage of the pilot scheme which led to the costs of preparing a court book.  That may be.  I think under the circumstances justice will be done if I order that the applicant pay the respondent's costs assessed at $1000. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             8 March 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	10 February 2004
Date of Judgment:	10 February 2004