S1279 of 2003 v Minister for Immigration - [2004] FMCA 748

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1279 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 748

MIGRATION –Review of Refugee Review Tribunal decision made in 2000 – objection to competency – issues raised in the application either considered in earlier court proceedings or lacking in substance – objection to competency upheld.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.418, 424, 477

Lie v Refugee Review Tribunal & Ors (proceedings S89 of 1999)
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24

Applicant:

APPLICANT S1279 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG634 of 2004

Delivered on:

1 November 2004

Delivered at:

Sydney

Hearing date:

1 November 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms A Nanson
Australian Government Solicitor

INTERLOCUTORY ORDERS

The objection to competency be upheld.
The application for judicial review filed on 9 March 2004 be dismissed summarily as being incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG634 of 2004

APPLICANT S1279 of 2003

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for summary dismissal of a judicial review application. The application for summary dismissal was filed on 24 June 2004 in relation to a judicial review application filed on 9 March 2004. The judicial review application seeks a review of a decision of the Refugee Review Tribunal (“the RRT”) made in the year 2000. I also have before me today a notice of objection to competency filed on 8 June 2004. After hearing Ms Nanson in relation to the circumstances in which the notice of objection to competency was considered and filed I elected not to apply the time limit to such objections in Order 54B of the Federal Court Rules.
The circumstances are that the representation to the Minister changed in May 2004 and the Minister's new legal representatives needed to consider earlier legal proceedings. The background facts and circumstances are set out in two affidavits by Angela Margaret Nanson made on 22 June 2004 and 31 October 2004. I received both affidavits into evidence. The background facts are usefully summarised in written submissions prepared on behalf of the Minister by Ms Nanson and filed in court by leave today. I adopt paragraphs 2 and 3 of those written submissions for the purposes of this judgment:
In support of her application, the Minister reads and relies upon the affidavit of Angela Nanson affirmed 24 June 2004and the annexures to that affidavit. The Minister also reads and relies upon the affidavit of Angela Nanson affirmed 31 October 2004. Those affidavits disclose that:
a)On 5 June 2000, the applicant filed an application for an order of review of the decision of the RRT dated 11 May 2000 (annexure “A” to the affidavit affirmed 31 October 2004);
b)On 13 October 2000, O’Loughlin J dismissed an application for review by the applicant in the substantive proceedings (the applicant) upon the grounds that bias had not been demonstrated against the applicant by the RRT and that while his claim had not been ignored, it had been disbelieved (annexure “B” to the affidavit affirmed 31 October 2004);
c)On 6 February 2001, the Full Court of the Federal Court dismissed the applicant’s appeal (annexure ”C” to the affidavit affirmed 24 June 2004);
d)On 29 May 2003, a application for Constitutional writs was filed by Adrian Phillip Joel on behalf of the prosecutor as part of the class action commenced in the matter of Lie v Refugee Review Tribunal and Others (proceedings S89 of 1999) (annexures “D” and “E” to the affidavit affirmed 24 June 2004);
e)On 20 February 2004, following its remittal to the Federal Court, Emmett J dismissed the application;
f)On 9 March 2004, the applicant filed a fresh application in the Federal Magistrates Court under s.39B of the Judiciary Act1903 (Cth) for review of the same decision of the RRT;

Grounds of review
The grounds now relied upon by the applicant seek review of the decision of the RRT on the following basis:
a)Failure to accord procedural fairness as required under s.424(1) and s.418(3) of the Migration Act 1958 (Cth) (“the Migration Act”);
b)Failure to observe procedures required under the Migration Act - identical to those raise in Muin and Lie;
c)Error of law and/or lack of procedural fairness in failing to assess whether the application would be able to obtain effective State protection in his home country of Bangladesh.
I also have before me written submissions in support of the judicial review application filed by the applicant on 28 October 2004. The Minister's legal submissions deal with the issues of res judicata and estoppel as well as abuse of process and the time limit in s.477(1A) of the Migration Act. I ruled that I would not deal with the issues of res judicata and estoppel as they are not raised in the Minister's application. In my view, the objection to competency raises an issue of jurisdiction that should be considered first. Section 477(1A) of the Migration Act relevantly requires that a judicial review application against a decision of the RRT must be filed within 28 days of notification of the RRT decision.
The time limit only applies to privative clause decisions. Occasionally it will be clear that the tribunal decision under review is a privative clause decision by reason of earlier legal proceedings. In the present case, the applicant has instituted previous proceedings in the Federal Court and the High Court. The first proceedings in the Federal Court were dismissed by O'Loughlin J on 13 October 2000 and on appeal on 6 February 2001 by the Full Federal Court. Those decisions were both made before the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. The High Court in that decision established the basis upon which RRT decisions may now be challenged.
The applicant had the benefit of that judgment when, on 29 May 2003, he joined a class action in the High Court. That application was remitted to the Federal Court and dismissed by Emmett J on 20 February 2004. It is apparent from my reading that the decision of the Full Federal Court on 6 February 2001 that the Full Federal Court found no jurisdictional error in relation to the grounds of judicial review advanced before it. One of those grounds was the ground of failure to follow proper procedure also set out in the present application. However, in the present application that is augmented by reference to the High Court's decision in Muin and Lie.
The present application also raises a general issue of procedural unfairness, although that appears to also be linked in some way to the Muin and Lie decision. Although Emmett J gave no reasons for his decision, in my view, the dismissal of the proceedings remitted from the High Court deal with the issue of alleged procedural unfairness and procedural irregularity based upon the High Court's decision in Muin and Lie. It is now well settled that such a claim cannot succeed in the absence of either agreed facts or evidence. There are no agreed facts in this matter and neither is there any evidence that could sustain an allegation of procedural unfairness or procedural irregularity.
The only other ground advanced in the present application is an assertion that the RRT fell into jurisdictional error in assessing whether or not the state of Bangladesh is able to offer adequate protection to the applicant. A simple answer to that assertion is that that issue was not relevant to the RRT’s decision. The RRT did not need to consider whether the state of Bangladesh could offer adequate protection to the applicant because the RRT found that the applicant would not be at risk in Bangladesh. The applicant's claims of persecution in Bangladesh were rejected either on credibility grounds or on the basis that they did not point to any real risk of persecution.
The issue of jurisdictional error as raised in the present application has either been dealt with in the earlier proceedings in the Federal Court or has no substance. In either event, it is clear that the decision of the RRT is a privative clause decision. It follows that the time limit on judicial review applications in s.477(1A) of the Migration Act applies. I have no jurisdiction to extend that time limit. I conclude that I have no jurisdiction to entertain the judicial review application any further.
I will therefore order that the objection to competency be upheld and the application for judicial review filed on 9 March 2004 be dismissed summarily as incompetent.
In matters of this nature I have tended to award costs on an interlocutory basis in the sum of $2,500 by reference to the scale of costs otherwise applicable in proceedings before this Court in an interim or summary hearing. However, I note that strictly applied the cost rules could lead to a cost outcome in those circumstances in excess of $3,000 in particular cases.
Ms Nanson seeks an order for costs fixed in the sum of $3,000 on a party/party basis. I am satisfied that that costs outcome would be consistent with the event based scale of costs in the Federal Magistrates Court Rules 2001 (Cth) if applied in this matter. I am also satisfied that costs of that order would have been reasonably and properly incurred on behalf of the Minister in this matter to this point. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

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

Associate:

Date: 9 November 2004