SZAZP v Minister for Immigration & Anor - [2006] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 329

MIGRATION – Refugee – application for reinstatement – privative clause decision – Court lacks jurisdiction to hear this application – application dismissed.

Judiciary Act 1903, s.39
Migration Act 1958, ss.477(1A), 477(1), 477(2), 483A
Federal Magistrates Court Rules 2001, rr.16.05, 13.10, 13.10(b), 13.10(c)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant:

SZAZP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3422 of 2005

Judgment of:

Nicholls FM

Hearing date:

07 March 2006

Date of Last Submission:

23 February 2006

Delivered at:

Sydney

Delivered on:

07 March 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. N. Johnson

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application filed on 23 February 2006 seeking the setting aside of orders made on 1 February 2006, which dismissed the application filed in this Court on 23 November 2005, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3422 of 2005

SZAZP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me an application filed in this Court on 23 February 2006 seeking, pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”), that orders made on 1 February 2006, in dismissing an earlier application filed by the same applicant, be set aside. The earlier application filed on 23 November 2005 sought review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 May 2003 and handed down on 24 June 2003 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant. The Tribunal has been joined as the second respondent in these proceedings.
The relevant history in this matter is summarised in the affidavit of Andrea Jane Nesbitt, sworn on 13 January 2006, with relevant annexures, which shows that the only the Tribunal decision concerning the applicant has been the subject of extensive litigation. Annexure “A” to the affidavit contains the chronology of relevant events:
“BACKGROUND
1 January 1966              Application born in Bangladesh
26 April 2001                 Applicant arrived in Australia
DIMIA
2 May 2001Applicant lodged application for a protection visa
10 May 2001  Delegate of respondent refused application for a protection visa
RRT
24 May 2001  Applicant applied to RRT for review of delegate’s decision
1 May 2003   RRT hearing
24 June 2003  RRT’s decision handed down
Federal Magistrates          SZ1405 of 2003
Court
22 July 2003   Application for an order of review lodged
29 October 2004                 Substantive application dismissed by Lloyd-Jones FM
Federal Court                 NSD1650 of 2004
11 November 2004             Notice of appeal lodged
24 June 2005  Appeal dismissed by Emmett J
High Court   N2557 of 2003
21 July 2005                   Application for special leave lodged
14 November 2005             Application for special leave dismissed by Gummow and Kirby JJ
Federal Magistrates          SYG3422 of 2005
Court
23 November 2005             Application for judicial review lodged.”
When the matter came on before me for directions on 1 February 2006, the applicant did not appear. I was satisfied that the applicant had notice of the matter on that date, and importantly had notice that a failure to attend could result in dismissal of the application (see Respondent’s Exhibit 1 (“RE1”)). The applicant did not appear. As nothing was heard from the applicant, and as this was not a first Court date, I proceeded to make an order dismissing the application.
On 7 March 2006 the applicant filed an application in this Court seeking, pursuant to Rule 16.05 of the Rules, that the order (and the order for costs) made on 1 February 2006 be set aside.
At the hearing of this matter on 7 March 2006, I also had before me:
a)A notice of Objection to Competency, filed by the respondent Minister on 5 January 2006.
b)A Notice of Motion filed by the respondent on 13 January 2006, seeking summary dismissal of the application made on
23 November 2005 on the grounds that res judicata and issue estoppel are complete bars to the application, that Anshun estoppel applies and that it should be dismissed pursuant to Rules 13.10(b) (frivolous and vexatious) and 13.10(c) (abuse of process) of the Rules.
c)The affidavit of Andrea Jane Nesbitt, a solicitor in the employ of the respondent’s solicitors, sworn on 13 January 2006, with relevant annexures.
Before me today the applicant who appeared with the assistance of an interpreter in the Bengali language stated:
1)Regarding the failure to attend on 1 February 2006 the applicant confirmed that he had in fact received a letter from the respondent’s solicitors, dated 13 January 2006, notifying of both the date of the directions hearing (1 February 2006) and of the hearing of the Notice of Motion (21 July 2006). He also agreed that the letter clearly stated that if he did not attend “on either occasion” that the respondent would seek orders that the matter be dismissed with costs. However, the applicant said that he “misunderstood the whole thing” and thought that the hearing would be on 17 March 2006. [This appears to be a reference to a date set as a callover date by a Registrar when the matter first came before the Registrar on 20 December 2005].
2)
Regarding the application for judicial review filed on

23 November 2005 (that lacked any new complaints, and complaints that have been the subject of review before the Courts previously), the applicant said only that he cannot go back to Bangladesh and said that “if I go back I’ll be killed and nobody can save me”
3)Regarding the previous litigation history of the applicant before this Court the Federal and High Courts, the applicant did not provide any explanation other than to simply say that “I can’t go back to Bangladesh at this moment”.
The respondent’s Notice of Objection to Competency objecting to the jurisdiction of this Court to hear this matter asserts that the Court lacks jurisdiction to review the decision made by the Tribunal pursuant to s.477(1A) of the Migration Act 1958 (“the Act”) which provides that an application to the Federal Magistrates Court under s.39 of the Judiciary Act 1903 and s.483A of the Act must be made within 28 days of the notification of the Tribunal decision. The relevant section of the Act is now s.477(1) and is expressed in similar terms as it relates to the 28 day time limit. The Tribunal decision was handed down on 24 June 2003. The applicant concedes in his application now before the Court that he was notified of the Tribunal decision on 24 June 2003.
The originating application now before the Court was filed on
23 November 2005, almost 2 ½ years beyond the 28 day period provided in s.477(1) for the filing of applications for judicial review. Nor relevantly, in light of the above, does s.477(2) apply.
Section 477(1) specifies the time limit for the filing of applications regarding privative clause decisions. The respondent contends that the decision of the Tribunal put before me now is a privative clause decision. In this regard I note the affidavit of Andrea Jane Nesbitt, and in particular:
1)Annexure “B” of the affidavit (at pages 5 to 18) being the Orders and Judgment of FM Lloyd-Jones when considering an application from the applicant concerning the same Tribunal decision of which he now complains. His Honour particularly turned his mind (page 10) to the issue of whether the Tribunal’s decision was a privative clause decision in light of Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157”) and found that he was not able to identify any jurisdictional error [page 18 of the Annexures to the affidavit].
2)Annexure “C” to that affidavit (pages 19 to 27) being the reasons for Judgement of his Honour Emmett J. in the Federal Court when he considered an appeal from the Judgment of FM Lloyd-Jones. His Honour found at [25] that:
“The Federal Magistrates Court was unable to identify any error in the reasons of, or in the procedure before, the Tribunal. There does not appear to me to be any error in the decision of the Federal Magistrates Court. The submissions that I have summarised do no more than call in question the merits of the Tribunal decision. In the absence of something more, there is no case of bias established. It follows, in my opinion, that the appeal should be dismissed.”
I further note Annexure “D” to the affidavit (pages 28 to 30) being orders and transcript of proceedings before the High Court in relation to the applicant’s application for special leave to appeal the Judgment of Emmett J. Gummow and Kirby JJ., in refusing the special leave to appeal, noted at [20]:
“We have considered the applicant’s case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There would be insufficient prospects of success in any appeal to this Court from the Federal Court to warrant a grant of special leave. Accordingly, special leave to appeal is refused.”
I note two decisions of Driver FM: SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 (“SZCAT”) and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498 (“SZCTT”). Both decisions were upheld on appeal by the Federal Court. In both those cases, there is no doubt that the applications for review had been filed well outside the prescribed time in the then s.477(1A) of the Act. The Court first considered the issue of whether the decision of the Tribunal was a privative cause decision and found in both matters that the Tribunal decision, having been considered earlier by the Federal Court and the Full Court of the Federal Court in each case, and having found that there was no jurisdictional error in respect of each decision, were privative clause decisions, and that this had been conclusively determined.
I note as Conti J., said in the appeal SZCTT at paragraph 7 of the Court's judgment:
“It is clear that the applicant has exhausted his legal rights as established at least by the judgments of four judges of this court. The application to the Federal Magistrates Court was inferentially an abuse of process and leave to appeal on the question of competence is of the same character.”
In the matter before me the Tribunal decision, handed down on 24 June 2003, has already been the subject, as can be seen above, of extensive judicial review. I note that this followed the introduction of s.474 to the Act, and the Judgement of FM Lloyd-Jones at first instance was made following the High Court decision in Plaintiff S157/2002. No jurisdictional error has been identified in the Tribunal’s decision before both the Federal Magistrates Court and Federal Court. I am bound by the decision of the Federal Court. The effect of the two Judgments are that the Tribunal decision has already been determined to be a privative clause decision and I am bound by this determination.
I am not persuaded by the applicant’s explanation for the failure to attend before me on 1 February 2006. But even if I was persuaded to set aside the orders of 1 February 2006 on the basis of accepting the applicant’s explanation for the failure to attend on that day, such an order would in all the circumstances be futile. The Tribunal’s decision has already been determined to be a privative clause decision. This is binding on me. As a privative clause decision the application to this Court on 23 November 2005 has been filed well and truly out of time, and the Court lacks jurisdiction to hear this matter.
I should also note for the applicant’s benefit that the grounds advanced in the application now, while expressed in slightly different terms to what was put before the Courts previously (see paragraph 7 of the Judgment of FM Lloyd-Jones – Annexure “B” to the affidavit of Andrea Jane Nesbitt) appear to be derived from a different “formula” of complaints sometimes seen in this Court, but in any event appear to raise the same complaints as before. Nor do they contain any particularity. I note in particular the applicant again complains of bias on the part of the Tribunal – a matter already dealt with by the Federal Magistrates Court and the Federal Court. Nor does there appear to be any relevance in the reference to the “Amnesty International report”.
In any event the application to set aside the orders dismissing the originating application is dismissed on the basis that ultimately the Tribunal’s decision has already been determined to be a privative clause decision and the originating application of 23 February 2005 has been filed well out of time. The Court lacks jurisdiction to hear this application and the application is dismissed on that basis.
Having determined that the Court has no jurisdiction to hear this matter and having dismissed the application on that basis, it is not necessary to proceed further with the respondent’s Notice of Motion.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 7 April 2006