SZBDL v Minister for Immigration
[2006] FMCA 349
•9 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 349 |
| MIGRATION – Practice and procedure - application for judicial review of the Refugee Review Tribunal decision – show cause hearing – interlocutory orders seeking dismissal of the application pursuant to r.44.12 of the Federal Magistrates Court Rules 2001. |
| Federal Magistrates Court Rules 2001, rr.44.6(2)(a), 44.6(2)(b), 44.12, 44.15 Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| SZBDL v Minister for Immigration [2005] FMCA 58 SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 |
| Applicant: | SZBDL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICUTLURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG67 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondent: | Ms A Nanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 on the grounds that:
a)The Court lacks jurisdiction to hear the application [r.44.06(2)(a)].
b)There has been delay in seeking the remedy [r.44.06(2)(b)].
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal of Mr Luke Hardy (File No: No.2/42649) made on 20 June 2003 and handed down on 16 July 2003 or the decision of the Delegate of the Minister for Immigration handed down on 24 April 2002, is to be accepted for filing without leave of this Court.
The applicant pay the first respondent’s costs of this proceeding fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG67 of 2006
| SZBDL |
Applicant
And
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
This is an interlocutory application filed by the respondent solicitors seeking dismissal of the substantive application pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 on the grounds that:
a)The Court lacks jurisdiction to hear the application [r.44.06(2)(a)].
b)There has been delay in seeking the remedy [r.44.06(2)(b)].
c)There have been other judicial review proceedings in relation to the decision [r.44.06(2)(c)].
d)
That the applicant has not complied with subsection 486D(1) of the Migration Act 1958 9 (“the Act”), by failing to disclose all prior review in respect of the decision under review [r.44.06(2)(d)], being proceedings commenced in the Federal Magistrates Court on 13 August 2003, which was dismissed on
11 February 2005 (SYG 1565/2003), an appeal to the Federal Court of Australia on 2 March 2005, which was dismissed on
18 August 2005 (NSD 300/2005), and an application for Special Leave to Appeal to the High Court on 2 September 2005, which was dismissed on 20 December 2005 (S 405/2005).
e)That the application has not raised an arguable case for the relief claimed [r.44.12(1)(a)].
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonym “SZBDL”.
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 on 9 January 2006 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The decision made on 20 June 2003 and handed down on 16 July 2003, affirming a decision of the delegate of the respondent (“the delegate”) made on 24 April 2002 to refuse to grant the applicant a protection (Class XA) visas. The applicant seeks relief against the decision of the Tribunal.
For the purposes of this interlocutory application, the respondent tendered and applied for the affidavit of Hervee Dupont Dejean, affirmed on 28 February 2006 (“affidavit of Ms Dejean”), to be admitted into evidence.
At the time of filing his application for judicial review, referred in paragraph three above, the applicant also filed an affidavit in support of that application (“affidavit of the applicant”).
Background
The applicant, a citizen of Bangladesh, is one of three seamen who jumped ship from the Iranian vessel MV Iran Jamal on 13 July 2001, when it was docked in Sydney. All three applicants lodged separate applications for protection visas with what is now the Department of Immigration and Multicultural Affairs under the Act. All three applicants used the same migration agent. At the time, all three were residing in the same apartment in suburban Sydney (affidavit of Ms Dejean, page 5).
The applicant claimed fear of persecution in Bangladesh for convention related reasons of religion. The applicant claimed he was born into a family of Ahmadiyya Muslims, sometimes called Kadiani, in Bangladesh.
Litigation History
The affidavit of Ms Dejean contains a convenient litigation history of the application which I have adopted for the purposes of this judgment:
a)On 8 August 2003, the applicant lodged an application for review in the Federal Magistrates Court (“the FMC”) in proceedings identified as SYG 1565/2003.
b)
On 11 February 2005, the FMC dismissed application
SYG 1565/2003 with costs.
c)On 1 March 2005, the applicant filed a notice of appeal against the decision of the FMC in the Federal Court of Australia in proceedings identified as NSD 300/2005.
d)
On 8 August 2005, the Federal Court dismissed appeal
NSD 300/2005 with costs.
e)On 1 September 2005, the applicant filed an application for special leave to appeal in the High Court of Australia in proceedings identified as S405/2005.
f)On 15 December 2005, the High Court dismissed application S405/2005.
Reasons
The applicant appeared before me at a First Court Date directions hearing on 15 February 2006. Prior to that date, the respondent’s solicitors had filed a response dated 16 January 2006 seeking a show cause hearing in accordance with r.44.06 of the Rules. At the First Court Date directions hearing, I indicated to the applicant that the respondent’s solicitors were seeking to have his substantial application dismissed on five different grounds provided for under part 44 of the Rules. The matter was set down at that time for hearing before this Court on 9 March 2006 and I indicated to the applicant that the respondent’s request for a show cause hearing would take place at that time.
The applicant prepared written submissions prior to the hearing, which claimed that the Tribunal had identified the wrong issues to consider the applicant’s claim and possibly had failed to accord him natural justice and that all of the subsequent judicial review that overlooked this issue. The substantial part of his submissions refers to his membership of the Ahmadiyya Muslim Jamaat in Bangladesh. The applicant then proceeded to explain two pieces of evidence in respect of his membership of the Party and an attack on his home not being correctly handled by the Tribunal.
When it was explained to the applicant the purpose of today’s hearing and the issues which were before the Court, the applicant indicated that he did not know how to respond because of his lack of English and understanding of the legal system. He requested the matter to be returned to the Tribunal for reassessment and consideration by that body.
The material contained in the affidavit of Ms Dejean clearly indicates that the decision of the Tribunal has been previously reviewed by the FMC, the Federal Court and subject to a special leave application to the High Court. In each instant, those courts have found that the Tribunal decision has not disclosed any legal error that goes to jurisdiction.
In the decision of SZBDL v Minister for Immigration [2005] FMCA 58 at [14], His Honour Driver FM makes the following findings:
There was no procedural unfairness in the conduct of the hearing by the RRT. There was no jurisdictional error in the decision of the RRT. The decision of the RRT is a privative clause decision and the application to this Court must therefore be dismissed.
The applicant exercised his right to appeal to the Federal Court in proceeding NSD 300 of 2005. His Honour Tamberlin J dismissed that application on 8 August 2005, and concluded at [9]:
In all the circumstances, and having regard to what the applicant has put before me today, in particular in his outline of submissions, and the notice of appeal, I am of the view that there has been no error of law disclosed in the decision of the learned Federal Magistrate and nor has anything been pointed to in the decision of the Tribunal which would warrant this Court to reverse the decision or to modify it in any way.
The applicant then exercised his right to seek special leave to appeal to the High Court and filed an application on 1 September 2005 in proceeding S405 of 2005. The matter came before the court on
15 December 2005 when His Honour Gummow J in the transcript of the proceedings made the following observation:
The Federal Magistrates Court rejected an application for review, since no jurisdictional error had been demonstrated. In the Federal Court of Australia, Tamberlin J dismissed an appeal on the grounds that there is no relevant error in the decision of the Magistrate.
We have considered the applicant’s written case and the decision of the Tribunal, the Federal Magistrates Court and the Federal Court. There would be insufficient prospects of success on any appeal to this Court from the Federal Court to warrant a grant of special leave. Accordingly, the application for special leave is refused.
I am satisfied that the following issues have been established, 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)The decision of Driver FM to the effect that the decision is a privative clause decision; and
d)The decision of Driver FM has not been disturbed by either the Federal Court or by the High Court.
No error has been found in the Tribunal 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 decision 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 these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 per Bennet J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 per Conti J.
In cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purposes of any procedures in this Court, (and that issue has been conclusively determined by previous hearings and affirmed by appeal to the Federal Court), this Court is bound by the decision of the Full Federal Court that the primary issue to resolve is that of jurisdiction. 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 this Court lacks jurisdiction to hear the application in accordance with r.44.06(2)(a). There has been a delay in seeking the remedy pursuant to r.44.06(2)(b).
Conclusion
The application filed on 9 January 2006, 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. Consequently the application should be dismissed pursuant to r.44.12 of the Rules.
I am satisfied that an order for costs should be made in this matter and be fixed in accordance with r.44.15 and Schedule 1, Part 2 of the Rules. I order that the applicant pay the first respondent’s costs and disbursements in the sum of $2,500.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 March 2006