SZAZN v Minister for Immigration
[2006] FMCA 871
•2 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 871 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant sought extension of time to file application for review 81 days after deemed notification – application no reasonable prospects of success – abuse of process. |
| Migration Act 1958 (Cth), s.477 Migration Litigation Reform Act 2005 (Cth), sch. 1 cl. 42 |
| SZAZN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1020 SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349 SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 Hunter v Chief Constable of the West Midlands Police (1928) AC 529 |
| Applicant: | SZAZN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG522 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 May 2006 |
| Date of last submission: | 2 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2006 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Ms N. Johnson |
ORDERS
The Applicant’s application before this Court is dismissed.
No further application by the applicant to review the decision of either of the Refugee Review Tribunal made on 18 June 2003 or the Delegate of the First Respondent made on 22 February 2002 be accepted for filing except without leave of the Court.
That the Applicant pay the First Respondent's costs in an amount of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG522 of 2006
| SZAZN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 20 February 2006, the applicant filed an application in this Court seeking review of a decision of the Tribunal made on 18 June 2003 and an extension of time.
On 15 March 2006, the first respondent filed a response to that application, essentially opposing any extension of time being granted to the applicant in respect of his application, the application having been served more than 28 days from 1 December 2005, that being the date on which the applicant is deemed to have been notified of the Tribunal's decision (Migration Litigation Reform Act 2005 (Cth) Schedule 1 Part 2 Clause 42).
The application before this Court was filed 81 days after 1 December 2005.
The legislative scheme provides 28 days for the applicant to file an application. However, pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), the Court has a discretion to extend that time a further 56 days, where it is in the interests. After the expiration of 84 days from notification of the Tribunal decision, there is no discretion in the Court to grant any further extension.
The first respondent opposes the extension of time based essentially on the utility of the applicant having any time extended in circumstances where the applicant has sought judicial review by this Court in respect of that decision on a prior occasion.
The first respondent relies on an affidavit sworn 14 March 2006 of Nicola Johnson and filed in this Court on 15 March 2006. That affidavit annexes a copy of the order and reasons for judgment of Barnes FM dated 7 December 2004 in which Barnes FM noted that:
“The applicant is self-represented and I have considered all of the matters raised in his amended application and in his written submission in considering whether any jurisdictional error is established.”
(SZAZN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1020 at [12] (“SZAZN”))
The application being considered by Barnes FM is neither reproduced in her judgment nor provided by the first respondent in evidence before me today. It is clear that the Federal Magistrate's judgment was confined to what she understood to be the application before her. In the circumstances, it is not possible for me to compare the application that was before Barnes FM with the application presently before the Court and the repetition of the grounds of the review sought by the applicant in the present application before this Court.
Annexure C to the affidavit of Ms Johnson is a decision of Moore J, dated 8 April 2005, in which he considers an appeal from the decision of Barnes FM. Again, the first respondent has not provided a copy of that appeal. Moore J makes it clear that he is proceeding in respect of the grounds of appeal:
“…on the basis that the appellant is seeking to challenge the Federal Magistrate's judgment on the basis that her Honour failed to find actual bias on the part of the Tribunal, or that the appellant was denied procedural fairness before the Tribunal, or that it failed to give effect to section 424A(1).
(SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349 at [16] )
In respect of each of those grounds, Moore J upheld the decision of Barnes FM (SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349 at [16]).
Annexure D to the affidavit of Ms Johnson is the transcript of the decision of a special leave application before the High Court. Again, there is no copy of the special leave application provided by the first respondent. I note that Gummow J states that the conclusion of that Court is:
“…that this case turned below on its own facts, that the applicant is seeking to reagitate the merits of his case and no point of principle, either of law or jurisdiction, is raised by the application. There are no prospects of success upon the two new issues raised in this Court and just mentioned by Ms Allars. Accordingly, the application fails and must be dismissed with costs.”
Again, it is not possible for me to have regard to the grounds that were being considered by Gummow J.
The grounds of the application filed in this Court on 20 February 2006 are set out as follows :
“1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding the persecutions I experienced in Bangladesh for my political belief of Awami League politics.
2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a different decision by the Tribunal.
3. The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision.
…4. The Tribunal in its decision has mentioned without any valid reason that I will have no problem if I return back to my country of residence, Bangladesh. The Tribunal totally ignored my the persecutions as an activists of Awami League in spite of providing adequate documents in support of my claims. In fact the tribunal should have given the opportunity to me to comment on.”
The first ground relates to a claim that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction in failing to take into account oral evidence regarding persecutions experienced by the applicant in Bangladesh. However, there are no particulars provided in the application as to the nature of the oral evidence to which he refers.
The applicant relies on an affidavit sworn by him on 10 April 2006 which contains further particulars at paragraphs 26, 27, 28, 29, 31 and 32 of those grounds. Those paragraphs are in the following terms:
“26. The Tribunal in its decision ‘findings and reason’ has harshly mentioned that I have no problem if I return back to my previous country of residence, Bangladesh for my political belief. In fact the tribunal should have given the opportunity to me to comment on.
27. The Tribunal made no inquiries to verify the authenticity of my documents prior to come to its decision.
28. The Tribunal failed to accord procedural fairness under s424 of the Migration Act 1958 for its failure to give me the adverse information prior to decide my case neither at the time of interview nor afterwards.
29. The decision was made in excess of the jurisdiction of the Tribunal and is consequently void and of no effect.
31. The finding that I did not and does not have a genuine fear of persecution for a convention reason as member of Awami League and that my fear of persecution is not well founded within the meaning of the convention and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary option does not exist;”
None of those paragraphs provide any further particulars of the ground just referred to.
The second ground relates to an assertion by the applicant that the Tribunal exceeded its jurisdiction, constructively failed to exercise its jurisdiction or denied the applicant procedural fairness by failing to put adverse materials to the applicant and to enable the applicant to have an opportunity to explain any concerns. Again, there are no particulars provided in respect of this ground.
The third ground relates to an allegation of denial of natural justice in the question of bias. I note that Moore J refers specifically to the decision of Barnes FM where her Honour dismissed the applicant’s claim of actual bias on the part of the Tribunal (SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349 at [14]). That decision is upheld by Moore J (SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349). In those circumstances, I am satisfied that there has been a determination of that issue and the applicant is estopped from raising that ground before this Court again.
The fourth ground relates to a claim that appears to be a cavilling with facts found by the Tribunal and therefore to be seeking merits review. Such a ground has no prospects of success before this Court as this Court has no jurisdiction to consider such a ground.
There is no evidence provided by the applicant to explain his delay in filing his application in this Court either from the deemed date of notification of 1 December 2005 or otherwise. In considering whether time ought to be extended, I have regard to the utility of making such an order. Grounds 1 and 2 in the present application do not disclose sufficient particularity to satisfy me that they indeed are not grounds that were considered by the other Courts.
In the circumstances, the applicant's application to this Court for an extension of time for the filing of application for judicial review of the Tribunal’s decision has no reasonable prospects of success.
In considering an extension of time, at the heart of any such exercise of discretion, is what is in the interests of justice. I have regard to the consequences to the applicant if an order granting an extension of time is not made. However, as I have said above, I am not persuaded that his application before this Court has reasonable prospects of success. Balanced against the applicant's interests are the interests of the community in having these administrative decisions of tribunals finalised and there being finality to the litigation involved.
On balance, it is my view that the interests of justice are best served or are more properly served, by refusing any extension of time to the applicant.
This Court only has jurisdiction to deal with this matter if the decision of the Tribunal is affected by jurisdictional error. That is a matter that has been determined by other Courts in other proceedings brought by the applicant and there is accordingly a res judicata between the parties in respect of that issue.
RECORDED : NOT TRANSCRIBED
The first respondent seeks an order that the applicant not file any further application in this Court in respect of either the decision of the Refugee Review Tribunal or the delegate without the leave of the Court. The order sought is in the following terms:
“That no further application by the applicant to review the decision of the Refugee Review Tribunal handed down on 11 July 2003 or for review of the decision of a delegate of the respondent made on 22 February 2002 be accepted for filing except with leave of the Court.”
In support of that application, the first respondent again relies on the affidavit of Nicola Johnson sworn 14 March 2006 which records two prior filings by the applicant in this Court, one which has been the subject of my reasons this afternoon, the second of which, according to paragraphs 11 and 12 of the affidavit of Ms Johnson, refers to an application filed on 16 November 2005 by the applicant seeking judicial review of the Tribunal's decision handed down on 11 July 2003 and discontinued by the applicant on 28 November 2005.
In the circumstances, this is the third application filed by the applicant in this Court in respect of the Tribunal's decision. The first respondent referred the Court to the decision of Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500, at [27] and [28] in relation to this Court’s inherent powers to make such an order, where Jacobson J cited Diplock L.J. in Hunter v Chief Constable of the West Midlands Police (1928) AC 529 at 536 as follows:
‘The inherent power which any Court of Justice must possess to prevent misuse of its procedure in a way which, although not consistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to ligation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’
In circumstances where the applicant has sought review three times in this Court of the Tribunal's decision, one application being dismissed and the other being discontinued, it is my view that the conduct of the applicant amounts to a misuse of the Court's procedures and for those reasons an order of the nature sought ought be made.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs of the application in an amount of $2000 in circumstances where the total party/party costs expended were in the order of $2500. The first respondent does not seek the costs of appearance on the last occasion, that being in the order of $500.
In the circumstances, I am otherwise satisfied that the costs sought are reasonable.
ORDERS DELIVERED
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A. D’Addona
Date: 16 June 2006
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