SZAMT v Minister for Immigration - [2004] FMCA 304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAMT v MINISTER FOR IMMIGRATION

[2004] FMCA 304

MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – applicant claiming political persecution in Nepal – application filed out of time – objection to competency filed out of time under the Federal Court Rules, made applicable after the objection to competency was filed – enlargement of time for the objection to competency – objection to competency upheld as no reviewable error found – whether the resultant decision is interlocutory considered.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.474, 477

Applicant:

SZAMT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ719 of 2003

Delivered on:

12 May 2004

Delivered at:

Sydney

Hearing date:

12 May 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The time for the filing of the notice of objection to competency is extended until 12 June 2003.
The notice of objection to competency is upheld.
The application is dismissed as 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.
The applicant is to pay the setting down fee of $327 within 14 days or obtain a waiver.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ719 of 2003

SZAMT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 31 July 2002, and handed down on 21 August 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant backgrounds facts are accurately summarised in Mr Jordan's written submissions in paragraphs 2 and 3. Those facts are as follows:
The applicant is a citizen of Nepal. He claimed to fear persecution in Nepal for reason of political opinion arising from his activities as a Maoist. He claimed to have joined the Maoists in 1999 and referred to an incident at which he and others were attacked by police while putting up posters espousing the Maoist cause.[1]
The RRT did not believe the applicant’s claims (court book, page 106.6). The RRT’s reasons for this conclusion included the following:
i)In his initial claims the applicant said that the attack by police while he and others were putting up posters occurred in March 2000. At the hearing, the applicant stated that this incident occurred in March 1999 and that he had then gone into hiding and lived with his uncle for around eighteen months. When given an opportunity to explain the inconsistency the applicant said that “maybe he forgot”. Given the applicant’s assertion that he had gone into hiding for around eighteen months, the tribunal found that the inconsistency could not be explained on the basis that the applicant was confused or overwhelmed at the hearing (court book, pages 106-107).
ii)Independent country information indicated that the police had been ruthless in their actions against Maoist insurgents. In light of this information, the applicant’s claim that after going into hiding he remained in the same district and continued with his pro-Maoist activities, including putting up posters, was implausible (court book, page 106).
iii)It appeared that the applicant had departed Nepal legally using a passport in his own name (court book, page 106).
[1] The applicant’s claims are set out in full at court book, pages 1-2; his evidence at the hearing before the tribunal is summarised at court book, pages 94-96
The applicant relies upon his application filed on 1 May 2003. In that application, the applicant states:
I am not agreed with the decisions made on my application by the RRT and the DIMIA.
Please consider my application relevantly and make a positive decision.
I note that on 2 July 2003, the applicant was given an opportunity to file an amended application on or before 24 October 2003. The applicant did not take that opportunity. The application does not, on its face, point to any jurisdictional error. The jurisdiction of this Court under the Migration Act 1958 (Cth) (“the Migration Act”) is limited to the identification of jurisdictional error. As I explained to the applicant, this Court cannot review the decision of the RRT on its merits. It follows that the application does not disclose any cause of action.
However, on 3 July 2003, the applicant wrote to the Registrar of the Court and also apparently to the solicitors for the Minister, in which he set out a number of legal propositions. It appears to have been the intention of the applicant to augment his application in that letter. In that letter the applicant says that he is dissatisfied with the RRT decision and makes a number of assertions. Paragraphs 1, 3, 6, 7, 8, 9, 10, 11 and 12 of the letter are an attack upon the merits of the RRT decision. Paragraph 13 is an explanation for the delay by the applicant in bringing these present proceedings. Paragraphs 2, 4 and 5 assert jurisdictional error. Those paragraphs are sufficient to enliven the jurisdiction of the Court for the purposes of determining whether there is any jurisdictional error. No particulars are provided. I invited the applicant to make oral submissions today, but he declined that opportunity. I have, myself, considered the decision and reasons of the RRT and the documents appearing in the court book.
It does not appear to me that there is any jurisdictional error affecting the decision of the RRT. The decision was based upon credibility findings. Contrary to the applicant's assertion there was material available to support those findings. The conclusions reached by the presiding member were reasonably open to her on the material before her.
Also, contrary to the applicant's assertion, the decision of the RRT is plainly one made by reference to the subject matter, scope and objects of the Migration Act. The applicant's generalised assertion of an error of law has no substance.
In the circumstances, I am bound to dismiss the application. That is because the decision of the RRT is a privative clause decision for the purposes of s.474 of the Migration Act. In those circumstances, having reached that conclusion, the Court has no remaining jurisdiction.
The only remaining question is whether I should uphold the notice of objection to competency filed on behalf of the Minister on 12 June 2003. That objection to competency relies upon ss.477(1A) and 477(2) of the Migration Act. It is not in dispute that the applicant failed to lodge his application within the 21 day time limit imposed by s.477(1A). Indeed, there was a delay in excess of six months.
In those circumstances, in the ordinary course, I would uphold the objection to competency. Although it is not entirely clear to me, I understand that the result of upholding the objection to competency would be that my decision would be an interlocutory decision. As I understand it, under the Federal Court Rules (“the Federal Court Rules”), the appeal period for an interlocutory decision is seven, rather than 21 days, and leave to appeal is required.
Mr Jordan, for the Minister, properly drew my attention to Order 54B of the Federal Court Rules. Rule 3 provides that if a respondent to an application under that order objects to the competency of the application the respondent must, within 14 days after service upon him of the application, file and serve on the other parties to the proceedings a notice of objection stating briefly the grounds of the objection. Mr Jordan concedes that the 14 day time limit prescribed by rule 3 was not met in this case. Order 53B of the Federal Court Rules applies in migration proceedings in this Court.
However, I accept Mr Jordan's submission that under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) it is open to the Court to depart from the Federal Court Rules. A matter of significance in this case is that Order 53B did not become applicable pursuant to the Federal Magistrates Court Rules until 3 November 2003. The notice of objection to competency was filed on 12 June 2003. I have decided that I should enlarge time for the filing of the notice of objection to competency until 12 June 2003.
If, as appears to me likely, as a result of upholding the objection to competency the decision is an interlocutory decision with a seven day appeal period, I am inclined to the view that the interests of justice reasonably require some consideration being given to the applicant in relation to that appeal period. I note that Order 52 rule 15(1)(a)(iii) of the Federal Court Rules appears to give this Court the power to extend the time limit for an appeal. However, the rule does not appear to have any application in relation to the time for seeking leave to appeal. The question of whether the applicant should be given more than seven days to seek leave to appeal, if leave is required, is in the circumstances one for the Federal Court to consider if leave to appeal is sought.
On the question of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Jordan seeks an order for costs fixed in the sum of $3,500. This was a relatively straightforward matter. The main issue requiring consideration was whether the application should be dismissed in reliance upon s.474 or whether it should be dismissed in reliance upon s.477. In my view, on a party/party basis an award of costs in the sum of $3,000 would be adequate recompense to the Minister.
I will order that the applicant pay the Minister's costs and disbursements of an incidental to the application, which I fix in the sum of $3,000. I note that the applicant has also not paid the setting-down fee of $327 payable prior to the hearing of this matter. I will further order that the applicant pay the setting-down fee within 14 days of today's date, or obtain a waiver.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 12 May 2004