SZANH v Minister for Immigration
[2005] FMCA 1191
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANH v MINISTER FOR IMMIGRATION | [2005] FMCA 1191 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – RRT decision previously reviewed by this Court and by the Federal Court – conclusive outcome that the RRT decision is a privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 441A(4), 441C(4), 441G(1), 477, 483A
Federal Magistrates Court Rules 2001(Cth), r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 385
SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96
| Applicant: | SZANH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1635 of 2005 |
| Delivered on: | 31 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms A Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as a party to the proceedings.
The Notice of Objection to Competency is upheld.
The application filed in this Court on 23 June 2005 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 9 April 2003 is to be accepted for filing, except by leave of this Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1635 of 2005
| SZANH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 12 July 2005 the respondent moved the Court for orders that the proceedings be dismissed as incompetent on the ground that the application related to a privative clause decision and had not been filed within 28 days of the applicant’s being notified of the said decision as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent also moved the Court for an order that the proceedings be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001(Cth) (“the Rules”) as an abuse of process of the Court.
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 23 June 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 April 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 17 December 2001 to refuse to grant the applicant a protection (Class XA) visa.
For the purpose of this Notice of Motion the respondent tendered and applied for the following affidavits of Angela Margaret Nanson to be admitted into evidence:
a)Affidavit affirmed on 8 July 2005 and filed on 12 July 2005 (“Affidavit AMN-1”); and
b)Affidavit affirmed and filed in Court on 9 August 2005 (“Affidavit AMN-2”).
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZANH”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 1 September 2001. On 4 September 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 17 December 2001 the delegate refused to grant a protection visa and on 21 January 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.
Litigation history
A brief summary of the litigation history of this applicant is as follows:
c)On 5 May 2003 the applicant filed an application for a review of the Tribunal’s decision (9 April 2003) in the Federal Magistrates Court of Australia. Those proceedings were given the reference number, SZ747 of 2003 and the same pseudonym of “SZANH”;
d)On 17 June 2004 the matter came before His Honour Federal Magistrate Driver. On that day His Honour dismissed the application on the basis there was no jurisdictional error in the decision of the Tribunal (SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 385);
e)On 6 July 2004 the applicant lodged an appeal against the decision of the Driver FM in the Federal Court. Those proceedings were given the reference number NSD1048 of 2004;
f)On 27 September 2004 the matter came before His Honour Justice Sackville;
g)On 6 October 2004 Reasons for Judgment and orders were handed down dismissing the appeal (SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280);
h)On 1 November 2004 the applicant filed in the High Court an application for Special Leave to Appeal the decision of Sackville J. The proceedings were given the reference number S427 of 2004. No further document was filed in support of the Special Leave application;
i)On 4 August 2005 the High Court dismissed the Special Leave application;
j)On 23 June 2005 the applicant filed a new application in the Sydney Registry of the Federal Magistrates Court of Australia for a review of the Tribunal’s decision made on 9 April 2003. These proceedings were given the reference number SYG1635 of 2005.
Respondent’s application
Ms A Nanson, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)In support of the Notice of Motion, the respondent relied upon Ms Nanson’s first affidavit (Affidavit AMN-1) and the annexures to that affidavit. The affidavit disclosed the litigation history of the applicant’s applications to this Court, the Federal Court and the High Court as set out above in paragraph 6.
b)Pursuant to s.477(1A) of the Act, an application for judicial review must be filed within 28 days of the date of notification of the relevant Tribunal decision. The present application was filed more than two years following that decision during which time it has been fully considered by a Federal Magistrate and a single Judge on appeal in the Federal Court and the High Court. No error has been found in the Tribunal’s decision. The applicant has not shown any reason why this Court should not be bound by those decisions such that the time limitation under s.477(1A) of the Act should not apply. The respondent relies on the decisions 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 dismissed applications for review filed in similar circumstances as incompetent, both of which decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 per Bennett J; SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 per Conti J; see also SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 per Driver (upheld on appeal), SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 per Whitlam J. It was submitted that it was open to the Tribunal to reach the conclusions it did as set out in its decision and that there was no basis on which jurisdictional error may be established as a consequence. Accordingly, the respondent submitted the decision of the Tribunal is a privative clause decision and that the objection to competency should be upheld. In the alternative, the respondent moved on the second order sought in the Notice of Motion filed in the Federal Magistrates Court on 5 July 2005 that the proceedings be dismissed pursuant to Part 13, Rule 13.10(c) of the Rules as an abuse of the process of the Court.
c)Part 13, Rule 13.10(c) of the Rules deals with dismissal of a proceeding or claim for relief if that proceeding or claim is an abuse of process of the Court of the Court. In SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs (“SZBXA”) at [9] Driver FM adopted for the purposes of his judgment, relevantly the following submissions made on behalf of the respondent:
“An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant’s stay in Australia: NALE v Minister for Immigration [2003] FMCA 366 at [12]. Even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner: Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.”
d)The respondent submitted that the tests set out above are satisfied in the present case and the proceedings are a clear abuse of process and ought to be dismissed.
Applicant’s submissions
When the applicant was invited to address the Court in respect of the respondent’s application the only issues he raised were that he required further time and the assistance of a Court appointed Counsel in order to prepare his case. The operation of the Pilot RRT Legal Advice Scheme (NSW) and the nature of the assistance provided under the Scheme were briefly explained to the applicant. It was also explained to the applicant that because of the nature of the litigation history of the matter, no further delays to the hearing of the matter could be accommodated.
Reasons
The respondent moved on its Notice of Objection to Competency filed on 12 July 2005 and contended this Court does not have jurisdiction to review the Tribunal’s decision as s.477(1A) of the Act provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Act must be made within 28 days of notification of the Tribunal’s decision. There has been a full determination of the merits of the applicant’s case and a finding in the Federal Magistrates Court by Driver FM that the decision of the Tribunal is a private clause decision. That decision was upheld on appeal by the Honourable Justice Sackville in the Federal Court. The decision of the Tribunal is a privative clause decision and the time limits pursuant to s.477(1A) of the Act apply. The Tribunal made its decision on 9 April 2003. The date it was handed down is not recorded on the face of the decision nor is that date referred to in any of the subsequent decisions which reviewed the Tribunal’s decision. The present application for judicial review was not filed until 23 June 2005. In any event, the applicant was deemed to have been notified of the Tribunal’s decision on 20 April 2003 by virtue of ss.441A(4), 441C(4) and 441G(1) of the Act. Accordingly, a valid application for judicial of the Tribunal’s decision could only have been made to the Federal Magistrates Court by 18 May 2003. The Court has no power to extend the time limits.
The matter has already been dealt with in this Court in the decision SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 385 at [21] where Federal Magistrate Driver said:
“After considering the issues raised by the applicant, and after my own examination of the book of relevant documents, I have come to the view that an assertion of a reasonable apprehension of bias cannot be sustained. The RRT proceeding was fair. No other jurisdictional error was committed by the RRT.”
Then at [22], Driver FM stated:
“In the circumstances, I must dismiss the application.”
Federal Magistrate Driver’s decision was upheld on appeal in the Federal Court and the decision is reported as SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280. In that judgment, His Honour Sackville J found no error in the decision of this Court. The applicant then sought Special Leave to Appeal in the High Court against that decision but that application was dismissed on 4 August 2005. In the circumstances, the issue of whether the decision of the Tribunal is a private clause decision has been conclusively determined. The present application was not filed within the prescribed time limits pursuant to s.477(1A) of the Act and the Objection to Competency should be upheld. Therefore, I order that the application be summarily dismissed as incompetent.
Ms Nanson for the respondent also sought dismissal of these proceedings under Part 13, Rule 13.10(c) of the Rules. However, as a consequence of my finding that the Court has no jurisdiction it is inappropriate for the Court to make any rulings other than a ruling on jurisdiction.
Ms Nanson referred the Court to her second affidavit (Affidavit
AMN-2) in respect of costs for this matter. Attached to that affidavit and marked “A” was a letter from the Australian Government Solicitor dated 30 June 2005 which was sent by pre-paid post to the applicant’s address for service and enclosed sealed copies of the Notice of Appearance entered on behalf of the respondent and the Notice of Objection to Competency. The letter also informed the applicant of the basis upon which the respondent sought summary dismissal of the application. The letter raised the issue of the applicant’s High Court proceedings and the content of the Notice of Objection of Competency and Notice of Motion to dismiss the application as an abuse of process. The letter drew to the applicant’s attention the need to consider discontinuing the proceedings in light of the material and authorities contained within that letter. The applicant was also put on notice that should he decide to proceed and the respondent be successful, an order for indemnity costs would be sought. A further letter from the Australian Government Solicitor dated 13 July 2005 was sent by pre-paid post to the applicant’s address for service which contained sealed copies of a Notice of Motion and the affidavit of Ms Nanson. A third letter from the Australian Government Solicitor dated 19 July 2005 was forwarded by pre-paid post to the applicant at his address for service reminding the applicant of the date for the hearing of the Notice of Motion and the issue of costs. Ms Nanson’s affidavit indicated that none of the letters were returned to the respondent solicitors. I am satisfied that the issue of indemnity costs was brought to the applicant’s attention and the consequences of his decision to continue to pursue the matter if he was unsuccessful with his application.
Conclusion
The time limit on an application to this Court pursuant to s.477 of the Act applies. The application field by the applicant on 23 June 2005 was not made within the time limits of the section and is incompetent. The application is therefore summarily dismissed.
I am satisfied that an order for indemnity costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) 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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