NBJA v Minister for Immigration - [2007] FMCA 1703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBJA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1703

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh bringing further application to review a decision of the Refugee Review Tribunal that had already been the subject of judicial review.

PRACTICE & PROCEDURE – Summary dismissal – abuse of process – no arguable case for relief claimed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.412, 424A
Federal Magistrates Court Rules 2001 r.44.12

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
SZIIV v Minister for Immigration & Multicultural Affairs [2006] FMCA 322
NBJA v Minister for Immigration & Anor [2005] FMCA 1759
NBJA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1245
NBJA v Minister for Immigration & Multicultural Affairs & Anor [2007] HCA Trans 283

Applicant:

NBJA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2404 of 2007

Judgment of:

Scarlett FM

Hearing date:

27 September 2007

Date of last submission:

27 September 2007

Delivered at:

Sydney

Delivered on:

11 October 2007

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Mr Moloney

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The Application is dismissed under Rule 44.12 because the application has not raised an arguable case for the relief claimed.
The Application is dismissed as an abuse of process.
No further application for review of decisions of the Refugee Review Tribunal signed on 12 August 2004 and handed down on 2 September 2004 or signed on 9 July 2007 are to be filed in this Court without the leave of a Federal Magistrate.
The Applicant is to pay the First respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2404 of 2007

NBJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The Applicant is a citizen of Bangladesh, who is asking the Court for three orders:
i)A writ of certiorari quashing the decision of the Refugee Review Tribunal, finding that it had no jurisdiction to deal with his application for review.
ii)A writ of mandamus directed to the Refugee Review Tribunal, requiring it to determine his application for review according to law.
iii)An order that the Minister pay his costs.

Applicant’s Grounds of Review

He relies on three grounds:
a)That the Tribunal erred when holding that the original Refugee Review Tribunal discharged its statutory obligations and that it therefore had no jurisdiction to consider his application for review.
b)That the situation in his home country has changed and, in the same ground, that the Tribunal failed to comply with s.424A of the Migration Act.
c)That the Tribunal's decision about its jurisdictional inability to consider his application is a jurisdictional error.

First Respondent’s Grounds for Summary Dismissal

The First Respondent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 1703
Decision Date: 11 October 2007

CaseChat Overview and Summary

The applicant, NBJA, filed an application against the Minister for Immigration, contesting the decisions of the Refugee Review Tribunal dated 12 August 2004 and 9 July 2007, which dismissed his application for a protection visa. The Federal Court was called upon to determine the validity of the tribunal's decisions and whether the application should be dismissed as an abuse of process.

The primary legal issue before the court was whether the application presented an arguable case for relief and if it should be dismissed as an abuse of process under the Federal Court's inherent jurisdiction. The court had to examine the substance of the application and determine if the claims raised were sufficiently credible and warranted further judicial review.

The court found that the applicant's claims did not present an arguable case for the relief claimed and were not credible. The application was deemed to be an abuse of process, as it lacked a genuine basis for judicial review. Consequently, the application was dismissed under Rule 44.12. Furthermore, the court prohibited any further applications for review of the tribunal's decisions without the leave of a Federal Magistrate. The applicant was also ordered to pay the Minister's costs, fixed at $2,500.00.

Orders

Orders of the court

The Application is dismissed under Rule 44.12 because the application has not raised an arguable case for the relief claimed.

The Application is dismissed as an abuse of process.

No further application for review of decisions of the Refugee Review Tribunal signed on 12 August 2004 and handed down on 2 September 2004 or signed on 9 July 2007 are to be filed in this Court without the leave of a Federal Magistrate.

The Applicant is to pay the First respondent's costs fixed in the sum of $2,500.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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