S69 of 2004 v Minister for Immigration
[2005] FMCA 1237
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S69 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1237 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by Federal Court – no jurisdictional error found by Federal Court – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A, 486A(1)
Judiciary Act 1903 (Cth), s.39B
NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1237
NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 39
NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCATrans 016
Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1465
Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 116
Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 355
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 54
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicants: | APPLICANTS S69 of 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1533 of 2005 |
| Delivered on: | 31 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant husband appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr I Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The respondent’s Notice of Objection to Competency filed on 21 July 2005 is upheld.
The application for judicial review filed on 15 June 2005 is dismissed as incompetent.
The Court directs that no further application by the applicants to review the decision of the Refugee Review Tribunal made on 28 June 2002 and handed down on 23 July 2002 is to be accepted for filing without leave of the Court.
The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1533 of 2005
| APPLICANTS S69 of 2004 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an Notice of Objection to Competency filed on 21 July 2005, the respondent objects to the jurisdiction of this Court to hear the applicants’ application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submitted that the application should be dismissed as this Court does not have jurisdiction to hear it.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 June 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 June 2002 and handed down on 23 July 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 31 May 1999 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief in the form of a declaration to return the decision to the Tribunal for further consideration.
For the purpose of this Notice of Objection to Competency, the respondent tendered and applied for the affidavit of Sonia Sarah Harris sworn on 22 July 2005 (“the affidavit of Ms Harris”) to be admitted into evidence.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonym “Applicants S69 of 2004”.
The applicants are husband, wife and their child, who claim to be citizens of India. They arrived in Australia on 15 March 1999. On
13 April 1999 they lodged an application for protection visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 31 May 1999 the delegate refused to grant the protection visas and on 23 June 1999 the applicants applied to the Tribunal for a review of the delegate’s decision.
The husband, who is the first named applicant, is the only applicant to make specific claims under the Refugee Convention. He claimed he was born in West Bengal, India in 1958 and is the son of a well respected teacher. The applicant husband claimed that his father’s interest in politics and his affiliation with the Congress Party prompted the applicant husband to enter politics. After completing his primary and secondary school education he claimed he was caught up in politics at University in the late 1970’s. The applicant husband stated he obtained an arts degree from the University of Calcutta in 1980. He claimed that one major difficulty for him was his caste and that he was born into a low (untouchable) Scheduled Caste family. The applicant husband stated that he had no status in society irrespective of his achievements and that the caste system has a very great influence in India notwithstanding legislation which is designed to restrict its impact.
In 1981 the applicant husband stated he joined the Congress Party (India) and became a member of the “Habra Unit Congress”. He stated he was opposed to what he saw as the political immorality of some of the Congress Party leaders and as a result he was regarded as an “extreme progressive” of the party.
As a result of a competitive examination, the applicant husband claimed he obtained a job with the United Bank of India and remained with the bank for some 16 years becoming a regional secretary of the United Bank of India Employees Association (UPIPK). He also stated he became a trade union leader in West Bengal and held a position with the Central Committee of the Bank’s Scheduled Castes/Scheduled Tribes Welfare Organisation which was an organisation seeking to protect the rights and liberties of minority communities in India. The applicant husband claimed he feared his life would be in danger from activists of the Communist Party of India (Marxist) (“the CPI(M)”) if he returned to India because of his involvement in Trinamul Congress Party (TC), conversion to the Christian religion and membership of the (untouchable) Scheduled Caste.
Litigation history
Mr I Muthalib, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application which I have adopted and reproduced as follows:
a)On 15 August 2002 the applicants applied to the Federal Court for review of the Tribunal’s decision. This application was given the Federal Court proceedings number N858/2002.
b)On 4 October 2002 Sackville J dismissed the application to the Federal Court seeking judicial review of the Tribunal decision: NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1237. His Honour considered each ground of review identified in the application in conjunction with oral submissions by the applicants’ legal representative in amplification and support of the asserted grounds. His Honour found no jurisdictional error to be disclosed in the Tribunal’s decision by virtue of any of the asserted grounds of review. Further, although this matter was adjudicated under the former Part 8 of the Act, his Honour’s analysis included a consideration of whether the Tribunal failed to accord the applicants procedural fairness. His Honour found no such failure on the part of the Tribunal.
c)On 23 October 2002 the applicants filed a notice of appeal against the decision of Justice Sackville. This was given the Full Federal Court proceedings number N115/2002.
d)On 11 March 2003 the Full Court constituted by their Honours Moore, Tamberlin and Hely JJ dismissed the appeal: NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 39. Their Honours found no error on the part of the primary judge or any judicially reviewable error on the part of the Tribunal. Following consideration of the Tribunal’s decision, the decision of Sackville J and the grounds of the appeal, their Honours observed at [20]-[21]:
“…the issues sought to be raised by the appellant are the unparticularised allegation of bias and the allegation that he was denied procedural fairness. No case of bias was sought to be made out before the primary judge when the appellant was legally represented. Counsel for the respondent opposed this issue being raised on the basis that the hearing before the primary judge may have been conducted differently. We agree. It is a serious allegation and a Full Court should, at least ordinarily, allow such an allegation to be raised for the first time in an appeal only if there was some material suggesting the allegation was of substance (and assuming no prejudice would be occasioned by allowing the issue to be raised for the first time in an appeal). In the present case our attention was not drawn to any material which suggests the allegation is of substance. Indeed the allegation is, we apprehend, another way of restating the appellant’s contention that on the material he presented, the Tribunal should have reached the opposite conclusion concerning his claim for a protection visa.
As to the question of procedural fairness, it was an issue dealt with by the primary judge who gave cogent reasons, with which we agree, as to why the appellant’s various contentions should be rejected. The fact that the judgment of the High Court in S157/2002 v Commonwealth (supra) establishes that this ground of review is available, does not assist the appellant.”
e)On 3 April 2003 the applicants applied to the High Court for special leave to appeal from the judgment of the Full Court. This was given the High Court proceedings number S118/2003. In refusing special leave on 13 February 2004 McHugh J observed:
“The Court has carefully considered the judgment of the Refugee Review Tribunal, the judgments in the Full Court, the written submissions filed by the applicant and his oral submissions in support of his case today. We are of the view that no error is shown in the decision of the Refugee Review Tribunal and that an appeal would have no prospects of success.”: NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCATrans 016.
f)On 8 March 2004 the applicant filed an application for an order nisi in the High Court. This was given the High Court proceedings number S69/2004. On 13 April 2004 the High Court remitted the application to the Federal Court. This was given the Federal Court proceedings number N554/2004.
g)On 27 October 2004 Bennett J dismissed the remitted application as incompetent on the basis that it was not lodged within the time frame permitted by s.486A(1) of the Act: Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1465. As her Honour observed at [12]-[13]:
“…the question of whether or not there was any jurisdictional error on the part of the Tribunal has been clearly dealt with by the Full Court. Further, the High Court made it clear that it had carefully considered the Tribunal’s decision and came to the view that there was no error shown and that the appeal would have no prospects of success.
Nothing has been put by the applicant that establishes jurisdictional error on the part of the Tribunal. Even if I were wrong as to the application of s 486A of the Act and if there were a discretion to permit this application to be brought out of time, it seems to me that no arguable case has been raised by the applicant. Further, the first respondent submits and I accept that the present application should be barred by the doctrines of res judicata and estoppel, both issue estoppel and Anshun estoppel.”
h)In recognition of the importance that there be finality in litigation and there not be a multiplicity of proceedings, her Honour at [17] further ordered that:
“The applicants not be permitted to file any further application seeking review of the Tribunal’s decision dated 28 June 2002 and handed down on 23 July 2002 without the leave of the court.”
i)On 22 November 2004 the applicant lodged an application for an extension of time to file and serve a notice of appeal appealing from the decision of Bennett J. This was given the Federal Court proceedings number NSD1717/2004. On 7 February 2005 that application was dismissed with costs by Hely J: Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 116. His Honour held that the decision of Bennett J was “manifestly correct” and the application for an extension of time should be refused for that reason. His Honour indicated that he would have been inclined to extend the time within which the applicants could appeal if there was a viable basis for their appeal. However, his Honour was not satisfied that the applicants had an arguable case on appeal.
j)On 3 March 2005 the applicants filed an application for special leave to appeal from the judgment of Hely J. This was given the High Court proceedings number S68/2005. On 26 May 2005 their Honours Hayne and Callinan JJ dismissed the application for leave to appeal indicating that “there is no reason to doubt the correctness of that decision, either on the basis of the applicants’ written case or otherwise”: Applicants S69 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 355.
Respondent’s application
The Solicitors appearing for the respondent provided written submissions in support of their Notice of Objection to Competency prior to the hearing which contained the following contentions:
a)Section 477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court under s.483A in respect of a privative clause decision must be made within 28 days of the notification of the decision. The time limit in s.477(1A) of the Act only applies to privative clause decisions, that is only decisions that are not tainted by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”); Ngu v Minister for Immigration & Multicultural & Indigenous Affairs.
b)In the Federal Court proceedings, Sackville J found that there was no jurisdictional error by the Tribunal. On appeal to the Full Court, their Honours Moore, Tamberlin and Hely JJ found that Sackville J’s reasons did not reveal any error in approach. The High Court subsequently found no error in the treatment of the case by the Full Bench. In further proceedings, Bennett J, Hely J and the High Court in a subsequent special leave application similarly found the decision of the Tribunal not to be vitiated by jurisdictional error.
c)The effect of the judgments of the Federal Court, the Full Court and the High Court is that the issue of whether the Tribunal’s decision is a privative clause decision has already been conclusively determined: SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs at [5]-[6]; SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 341 at [5] (not disturbed on appeal in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195).
d)As it has been held that there was no jurisdictional error by the Tribunal the time limit in s.477(1A) of the Act applies.
Applicant’s submissions
The applicants filed two documents, the first entitled “Applicant’s Arguments for Objection Competency – Dated 9 August 2005” and secondly, “Author[it]ies and Reasons” prior to the hearing. These documents contained a number of generic submissions which did not appear to specifically address issues before the Court. The source of the documents is unknown. However, the material appeared to be in the nature of general advice raising three issues, namely the High Court decisions in Plaintiff S157/2002 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) and the Federal Court decision in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs (“SZFKL”). Attached to the submission headed “Applicant’s Arguments” was the Federal Court decision in SZFKL and the first 38 paragraphs of the High Court decision in SAAP.
Extracts of the cases attached to the submission headed “Author[it]ies and Reasons” were in the following format:
a)in the case of Plaintiff S157/2002, the title page and two pages of the judgment; and
b)in the case of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal, the first two pages of the transcripts of the hearing before the High Court.
Reasons
Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 15 June 2005 and seeks review of the Tribunal decision made on 28 June 2002 and handed down on 23 July 2002, which is a period in excess of 35 months. In the interim period, the decision of the Tribunal has been considered by the Federal Court, on appeal to the Full Federal Court, a special leave application to the High Court, remitted to the Federal Court and a second special leave application to the High Court. No error has been found in the Tribunal’s decision. The applicants have not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) should not apply.
I am guided by the decision of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismiss applications for review filed in similar circumstances as incompetent. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purposes of any proceedings in this Court and that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by a decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld on appeal in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached the conclusion that it did as set out in its decision and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Conclusion
The application filed on 15 June 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The Notice of Objection to Competency is upheld and the applicants’ substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the adult applicants to pay the respondent’s costs and disbursements of and incidental to the application
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 August 2005
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