SZBCU v Minister for Immigration - [2006] FMCA 351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 351

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.

Federal Magistrates Court Rules 2001, r.13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
SZBCU v Minister for Immigration [2005] FMCA 29
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1195
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:

SZBCU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2797 of 2005

Delivered on:

9 March 2006

Delivered at:

Sydney

Hearing date:

9 March 2006

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of a Bengali interpreter.

Advocate for the Respondent:

Mr I Muthalib

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The respondent’s Notice of Objection to Competency filed on 20 December 2005 is upheld.
The application for judicial review filed on 30 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 S Whitlam (File No: NO2/43958) made on 12 June 2003 and handed down on 9 July 2003, or the decision of the Delegate of the Minister for Immigration (File No: CLF1999/12731) handed down on 30 July 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 $3,000 on an indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2797 of 2005

SZBCU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

By a Notice of Objection to Competency filed on 20 December 2005, the first respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
a)Section 477(1A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides to the Federal Magistrates Court (“FMC”) under s.483A of the Act in respect of a privative clause decision must be made to the court within 28 days of the notification of the decision;
b)The decision sought to be challenged in these proceedings (“the decision”) is a privative clause decision as that term is defined in s.474(2) of the Act;
c)This application has been made under s.483A of the Act;
d)The decision was notified to the applicants on or about 9 July 2003; and
e)This application was made on 30 September 2005, which is not within 28 days of the notification of the decision.
In the alternative, by a Notice of Motion filed on 20 December 2005, the first respondent seeks the following orders that:
a)The proceedings be dismissed pursuant to r.13.10(c) of the Federal Magistrates Court Rules (“the Rules”) on the basis that:
i)the proceeding is frivolous or vexatious; or
ii)the proceeding is otherwise an abuse of process.
b)Further or in the alternative, that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel and Anshun estoppel.
c)The applicant not be permitted to institute any proceedings in this Court, seeking review of the decision made by the Refugee Review Tribunal on 12 June 2003 and handed down on 9 July 2003, without first obtaining the leave of the court, pursuant to r.13.11(3)(b) of the Rules;
d)The applicant pay the first respondent’s costs of the proceeding and this notice of motion on an indemnity basis; and
e)Any other order that the Honourable Court sees 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 30 September 2005 in the Sydney Registry of the FMC for a judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 June 2003 and handed down on 9 July 2003. The Tribunal affirmed the decision of the delegate of the first respondent (“the delegate”) made on 30 July 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
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 “SZBCU”.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the first respondent tendered and applied for the affidavit of Ishan Fuad Muthalib affirmed on 16 December 2005 (“affidavit of Mr Muthalib”) to be admitted into evidence.

Background

The applicant, who claims to be a citizen of Bangladesh, arrived in Australia in July 1999. On 24 May 2002, he lodged an application under the Act for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). On 13 June 2002, the Department decided to admit the present application because the previous protection visa decision was made on an invalid application.
On 30 July 2002, a delegate of the Minister refused to grant a protection visa and on 11 August 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (affidavit of Mr Muthalib).
The applicant was born in Noakhali District in 1957 and is a Muslim. He was educated in Noakhali District for ten years and is married. From 1994 to July 1999, he worked as a seaman for two shipping companies. The applicant and his family were supporters of the Muslim League, providers of the Awami League during the Liberation War in 1971. When the Awami League was in power, he and his family were victims of continuous harassment and torture by the Awami League and because of this, he could not finish his studies. He became a teacher in the Noakhali District, but continued to have trouble with the Awami League. In 1984, he went to sea to avoid continuing harassment of his family by the Awami League and was employed by two shipping companies. He claims when the Awami League came to power in 1996, they were more organised and started to look for the applicant to kill him and warned his family not to approach the authorities. He had a business at the time, but it was ordered to be closed thanks to the Awami League intervention. In November 1998, a group of Awami League supporters went to the applicant’s house looking for him. When they did not find him, they tortured his children and destroyed his business premises in Noakhali District. Police took no action despite requests by his father. In the circumstances, his family advised him to leave the country to save his life. He joined a vessel on one of the shipping companies on

7 November 1998 and came to Australia because of its human rights reputation.

Litigation history

The affidavit of Mr Muthalib provides a convenient summary of the litigating history of the applicant, which I have adopted and reproduce below:
(a)On 5 August 2003, the applicant applied to the FMC for review of a decision made by the Refugee Review Tribunal dated 12 June 2003 and handed down on 9 July 2003.
(b)On 10 January 2005, Raphael FM dismissed the FMC application with costs.
(c)On 28 January 2005, the applicant filed a notice of appeal in the Federal Court, appealing the decision of Raphael FM (Federal Court Proceedings number NSD111/2005).
(d)On 5 April 2005, His Honour, Sackville J, dismissed the notice of appeal with costs.
(e)On 26 April 2005, the applicant filed an application for special leave to appeal to the High Court (High Court proceedings number S175/2005).
(f)On 8 September 2005, the application for special leave to appeal was dismissed by Hayne and Callinan JJ with costs.
(g)On 30 September 2005, the applicant filed a second application in the FMC again seeking review of the Decision (FMC proceedings number SYG2797/2005).

Reasons

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 30 September 2005 and seeks review of the Tribunal decision made on 12 June 2003 and handed down on 9 July 2003, which is a period of approximately

30 months. In the interim period, an application to review the decision of the Tribunal had been listed in the FMC 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. The 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 His Honour Raphael FM, contained in the decision of SZBCU v Minister for Immigration [2005] FMCA 29 at [20], His Honour found:
Having considered the terms of the Tribunal’s decision and noting that the failure of the applicant to attend, I cannot see how the Tribunal has fallen into jurisdictional error when it concluded that it had not obtained the degree of satisfaction required by the Act in order to hold that the applicant was a person to whom Australia held protection obligations.
The applicant exercised his right of appeal to the Federal Court in proceedings NSD111/2005. His Honour Sackville J dismissed the application on 5 April 2005 and concluded at [19]:
To the extent that the applicant claims about adverse factual findings, these complaints cannot establish an error of law, let alone a jurisdictional error. If the RRT did make any error of fact (a proposition which has not been made out) they could fairly be attributed to the applicant’s failure to appear before the Tribunal.
The applicant then exercised his right to seek Special Leave to Appeal to the High Court and filed an application on 26 April 2005 in proceedings S175/2005. The matter came before the court on

6 September 2005 with 28 other similar applications dealt with by the court at that time. His Honour 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.
I am satisfied that the following requirements have been met, 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.
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 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 Muthalib 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 Muthalib 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 30 September 2005, relates to a privative clause decision that has not been filed within 28 days of the applicant being notified of the said decision, as required by s.477(1) 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 first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $3,000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 13 March 2006