SZAVA v Minister for Immigration
[2006] FMCA 296
•2 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 296 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZAFO v Minister for Immigration [2005] FMCA 885
SZAVA v Minister for Immigration [2004] FMCA 438
SZATC v Minister for Immigration [2004] FMCA 521
SZATC v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCA 1423
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
| Applicant: | SZAVA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2773 of 2005 |
| Delivered on: | 2 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 2 March 2006 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Advocate for the Respondent: | Mr A Crockett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The respondent’s Notice of Motion filed on 15 November 2005 is upheld.
The first respondent’s Notice of Objection to Competency filed on
15 November 2005 is upheld.
The application for judicial review filed on 29 September 2005 is dismissed as incompetent.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal of Mr Rodney Inder (File No: NO2/414647) made on 7 May 2003 and handed down on 29 May 2003 or the decision of the Delegate of the Minister for Immigration of R Mendoza, (File No: CLF2001/045970) handed down on 11 January 2002 is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,200 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2773 of 2005
| SZAVA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 15 November 2005, the first respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
a)The decision is a privative clause decision.
b)Contrary to s.477(1A) of the Migration Act 1958 (Cth) (“the Act”), the application has not been lodged within twenty-eight (28) days of the applicant being notified of the decision of the Refugee Review Tribunal; and
c)By virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, the applicant to lodge an application outside the period specified in s.477(1A).
In the alternative, by a Notice of Motion filed on 15 November 2005, the first respondent seeks the following orders:
d)The application be dismissed on the basis that:
i)the application is incompetent as the decision of the second respondent is a privative clause decision; or, in the alternative,
ii)the applicant is estopped from bringing the proceedings; or, in the alternative,
iii)the proceedings amount to an abuse of the Court’s process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules2001 (“the Rules”).
e)The applicant pay the first respondent’s costs.
f)The Registry not accept any new application from the applicant seeking to challenge the decision of the second respondent handed down on 29 May 2003 without leave of the Court.
g)Such further or other orders as the Court thinks fit.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) and invoking s.475A of the Act. It was filed on 29 September 2005 in the Sydney Registry of the Federal Magistrates Court, for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 May 2003 and handed down on 29 May 2003. The Tribunal affirmed the decision of the delegate of the first respondent (“the delegate”) made on 11 January 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the first respondent tendered and applied for the affidavit of Kristy Lee Alexander, sworn on 14 November 2005 (“Affidavit of
Ms Alexander”), to be admitted into evidence.
The applicant in these proceedings is not to be identified pursuant to the provisions of s.91X of the Act and has been given the pseudonym “SZAVA”.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 1 September 2001. On 5 September 2001 he lodged an application under the Act for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 11 January 2002 the delegate for the Department refused to grant a protection visa and on 11 February 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (Affidavit of Ms Alexander p.5).
The applicant claims to be born in Bangladesh, that his ethnicity is Bangladeshi and his religion Islam. He further claims he was born into an upper-middle class educated family “of heightened political consciousness and political involvement” and he was encouraged to participate in politics “from an early age”. The applicant claims that he obtained his “SSC” in 1984. He claims he joined the Jatiya party and participated in political rallies and demonstrations. He claims “after nine years President General Ershad dictatorial war was ended by a mass movement on 6 December 1990” and the Awami League became involved in “violent activities” and worked to oust the BNP government. The applicant claims that he became the cultural secretary of the Jatiya party, Begumgonj District Committee and “an influential leader of the JP”. As a result the “Awami League started a conspiracy theory against me” and he “became their target from that day”. He claimed that “they threatened me at home and they tried to kill me twice in 2000” and then in April 2001 he claims, “Muslim terrorists attacked an open air concert, I was injured and hospitalised” and “after release from hospital they threatened me to leave Bangladesh”. (Affidavit of Ms Alexander p.8).
Litigation history
The affidavit of Ms Alexander also provides a convenient summary of the litigating history of the applicant, which I have adopted and reproduce as follows:
(a)On 23 June 2003, the applicant filed an application seeking review of the Tribunal decision;
(b)On 5 July 2004, Raphael FM dismissed the application with costs;
(c)On 21 July 2004, the applicant filed a notice of appeal from the decision of Raphael FM;
(d)On 30 September 2004, Sackville J dismissed the appeal with costs;
(e)On 19 October 2004, the applicant filed an application for special leave to appeal from the decision of Sackville J in the High Court of Australia;
(f)On 8 September 2005, Hayne and Callinan JJ, dismissed the application for special leave to appeal;
(g)On 29 September 2005, the current application was filed. (Affidavit of Ms Alexander p.1-2).
First respondent’s application
Mr A Crockett, appearing for the respondents, provided written submissions in support of the Minister’s application and I have adopted paragraphs 18 and 19 for the purpose of this judgment:
18.In the first respondent’s submission, it is not necessary for the Court to analyse in detail the grounds for seeking judicial review as set out in the present application. Rather, in light of the first respondent’s notice of objection to competency, the Court need only be satisfied that:
a)the applicant by his original application for review invoked the same jurisdiction as the present application (ie. s.483A, as it then was, of the Act);
b)the present application seeks the same relief as that sought by the original application (although the relief sought by the present application is not in terms identical to that sought by the original application, the desired result is the same – ie. to quash the decision of the Tribunal and remit the matter to it for reconsideration according to law);
c)the Court made a finding to the effect that the decision is a privative clause decision and an appeal from that judgment was dismissed by the Federal Court and not cast doubt on by the High Court. Although none of the courts expressly say that the decision is a privative clause decision, in the context of the application before each of them and the orders made, and (if necessary) on examination of their respective reasons, it is clear this was the case. In particular Raphael FM and Sackville J each found that no jurisdictional error was established.
19.Accordingly, an issue estoppel on the first respondent’s notice of objection would arise by reason of the judgment of Raphael FM: see, for example, SZAFO v MIMIA [2005] FMCA 885 per Smith FM at [2], [7] and [15].
The submissions also address res judicata, issue estoppel, Anshun estoppel and abuse of process.
Reasons
Mr Crockett, appearing for the respondents, made an application that the matter should proceed under r.13.03A(d) of the Rules although the applicant had failed to appear. The applicant appeared before me on
2 November 2005 at the first court date directions. There the respondent indicated that they wished to have the matter listed for an interlocutory hearing seeking its dismissal in light of its litigation history. I made orders setting out a timetable and the applicant was provided with a sealed copy of those orders prior to leaving Court that day. Subsequently on 15 November 2005, the respondents’ solicitors wrote to the applicant providing him with a sealed copy of the notice of motion seeking summary dismissal, the affidavit sworn by
Ms Alexander and the notice of objection to competency. The covering letter confirmed that the matter would be heard in this Court and the date and time of the hearing. A further letter was sent by the respondents’ solicitors to the applicant on 21 February 2006. This letter was in response to the notification by the applicant of a change of address. The letter forwarded by express post confirmed the date, time and place of the hearing to be held today. Neither of those letters were returned to the respondents’ solicitors and they would have no reason to believe that the applicant had not received that correspondence.
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 29 September 2005 and seeks review of the Tribunal decision made on 7 May 2003 and handed down on 29 May 2003 – a period of approximately 28 months. In the interim period, an application to review the decision of the Tribunal had been listed in this Court before His Honour Raphael FM; in the Federal Court before His Honour Sackville J; and a special leave application was made to the High Court. That special leave application was dismissed by Their Honours Hayne and Callinan JJ. No error was found in the Tribunal’s decision.
The Notice of Objection to Competency raises the issue of whether the decision of the Tribunal is a privative clause decision as defined under s.474 of the Act. If the respondent succeeds in this contention, then the Court would be barred from giving relief sought by the applicant, and the applicant’s present application would be out of time under s.477(1A). The respondent’s objection to competency would succeed if, applying Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the Court held that the Tribunal’s decision was not affected by any jurisdictional error.
In the original proceedings in this matter before Raphael FM, contained in the decision of SZAVA v Minister for Immigration [2004] FMCA 438 at [12], His Honour found:
[12]In all the circumstances, I am unable to see any grounds upon which a review can be granted in this case. I must dismiss the application which I do. (Affidavit of Ms Alexander p.37)
The applicant exercised his right of appeal to the Federal Court in proceedings NSD1125 of 2004. Sackville J dismissed that application on 30 September 2004 and concluded at [13]:
The decision of the RRT was based upon its assessment of the appellant’s credibility and the objective circumstances which indicated that there was no real chance that he would suffer persecution in Bangladesh for a Convention reason. It is not the function of a court exercising powers of judicial review of RRT decisions to engage in a reassessment of the merits of the decision. No error has been shown in the Magistrate’s conclusion that the RRT’s decision was not affected by any jurisdictional error that would justify the grant of relief under s.39B(1) of the Judiciary Act 1903 (Cth). (Affidavit of Ms Alexander p.48)
The applicant then exercised his right to seek special leave to appeal to the High Court and filed an application on 19 October 2004 in proceedings S413 of 2004. The matter came before the court on
8 September 2005 with 28 other similar applications. Hayne J in the transcript of proceedings made the following observations:
It is convenient, and appropriate, to deal with these applications together because each application, and the material filed in support of each application, is substantially identical. Although the papers filed in each matter give some short description of facts and circumstances said to be particular to the applicant, the body of each written application and argument in support is substantially identical. Apart from the statement of facts, and in the names of the applicants, the dates of the relevant procedural steps, and the names of the relevant judicial officers have been changed.
…
…In none of the applications and in none of the material filed in support is there any attempt to identify a sufficient legal or factual basis in the particular case for any of these contentions or to relate the complaints made to what happened in the court below or in the Tribunal, which in any event in each case appears to us to have been entirely orthodox and untainted by any discernable error.
…
None of these applications will enjoy any prospect of success. (Affidavit of Ms Alexander p.56)
I am satisfied that the requirements set out in the respondent’s submissions at [18] to [19], namely:
a)The original application for review invokes the same jurisdiction as the present application;
b)The present application seeks the same relief as sought by the original application;
c)Although not expressly stated, the courts made findings to the effect that the decision is a privative clause decision; and
d)An issue estoppel on the first respondent’s notice of objection would arise by reason of the judgment of Rapahel FM: SZAFO v Minister for Immigration [2005] FMCA 885 per Smith FM at [2], [7] and [15].
No error has been found in the Tribunal’s decision and the applicant has not shown any reason why this Court should not be bound by those decisions such that the time limit under s.477(1A) of the Act should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498, which dismissed 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 per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 per Conti J.
Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 per Driver FM, the Minister’s application was based on assertions of res judicata, estoppel, abuse of process and lack of jurisdiction.
However, in cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purpose 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 the decisions 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 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.
In making this decision, I am also guided by the submissions of
Mr Crockett that the grounds of review in these proceedings are the same, or substantially the same, as those raised before Raphael FM. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any grounds for review not raised in previous proceedings, the application should be estopped from raising those grounds: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. I believe that the submissions made by
Mr Markus in support of his application are correct, but I do not believe it is necessary for me to consider those submissions in my reasons for my decision as I do not believe that this Court has jurisdiction in light of my reasonings above.
Conclusion
The application filed on 29 September 2005 relates to a privative clause decision and has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The respondent’s Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs should be made in this matter on an indemnity basis. I order the applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the amount of $2,200.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date:8 March 2006
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