SZBJQ v Minister for Immigration

[2006] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 473

MIGRATION – Review of Refugee Review Tribunal decision – review of protection visa – Tribunal decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that Tribunal decision is a privative clause decision – new application seeks that the respondent show cause under Rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) – seeks an extension of time for filing to be granted – filed one day after the expiry of the transitional period under the new Rules.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 13.10(b), 13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 477
Migration Litigation Reform Act 2005 (Cth)

SZBJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 626

Applicant: SZBJQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG606 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 3 April 2006

Delivered at: Sydney

Delivered on: 10 April 2006

REPRESENTATION

Applicant: Applicant appeared in person with the assistance of a Bengali interpreter.

Advocate for the Respondents: Ms C Gray

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 24 February 2006 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG606 of 2006

SZBJQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court on 24 February 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 9 July 2003 and handed down on

   
   

   6 August 2003.  It affirmed the decision of the delegate of the first respondent made on 14 April 2003, refusing to grant the applicant a Protection (Class XA) Visa.

2. The applicant applied for an order that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Act in respect of the Tribunal decision made on 9 July 2003 and handed down on 6 August 2003, being the date that the applicant acknowledged receipt of the decision.

3. The applicant applied for an order that the time for making an application to this Court be extended under s.477 of the Act, since the application was not made within 28 days of actual notification of the Tribunal decision.

4. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZBJQ”.

5. The first respondent filed a response in these proceedings which relies upon the following grounds and particulars in defence of the application:

   1.The application does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 9 July 2003 and handed down on 6 August 2003.

   2.The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.

   3.The application for review does not raise any arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.

   4.There have been other judicial review proceedings in relation to the decision that is the subject of the current proceedings.  Accordingly:

   (a)The applicant is estopped from bringing the current proceedings on the basis of res judicata and issue estoppel.

   (b)The doctrine of Anshun estoppel applies and there are no special circumstances to justify its non-application.

   (c) Pursuant to Part 13, Rule 13.10(b) of the Federal Magistrates Court Rules, the proceedings are frivolous or vexatious.

   (d) Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.

6. In support of the respondents’ response, an affidavit of Catherine Jane Gray, solicitor, sworn on 21 March 2006 and filed in these proceedings on the same date (“affidavit of Ms Gray”) were tendered and applied to be admitted into evidence.

Litigation history

1. The affidavit of Ms Gray provides a convenient summary of the litigation history of the applicant which I have adopted and reproduce below:

   On 9 July 2003, the Refugee Review Tribunal (“the Tribunal”) constituted by Kim Rosser made a decision to affirm the decision of a delegate of the respondent to refuse the applicant a protection visa.  That decision was handed down on 6 August 2003.

   On 2 September 2003, the applicant filed an application for judicial review in the Federal Magistrates Court to review the Tribunal decision handed down on 6 August 2003.  Those proceedings were allocated Court reference SYG1795 of 2003.

   On 12 May 2005, the Honourable Federal Magistrate Driver ordered that the application be dismissed, with costs fixed in the sum of $4,000.

   On 31 May 2005, the applicant filed a notice of appeal in the Federal Court of Australia against the orders and judgment of Federal Magistrate Driver dated 12 May 2005.  Those proceedings were allocated Court reference NSD857 of 2005.

   On 6 September 2005, the Honourable Justice Hely dismissed the appeal with costs.

   On 30 September 2005, the applicant filed an application for special leave to appeal against the orders and judgment of Justice Hely dated 6 September 2005.  Those proceedings were allocated Court reference S480 of 2005.

   On 9 February 2006, the Honourable Justices Hayne and Crennan dismissed the application for special leave to appeal.

   On 24 February 2006, the applicant filed an application for judicial review in the Federal Magistrates Court, to review the decision of the Tribunal handed down on 6 August 2003.  Those proceedings were allocated Court reference SYG606 of 2006.

2. This application was filed on 24 February 2006. The Court’s jurisdiction under s.476(1) of the Act is subject to a time limit under s.477(1) of the Act which states:

   An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

   This period may be extended in accordance with the provisions contained in s.477(2) of the Act:

   The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

   (a)    an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

   (b)  the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

   Subject to the exception in s.477(2)(b) above, this Court has no power to overlook or extend the time limit. Consequently all applications brought outside the 84 day limit are incompetent.

3. The first issue I must consider is the operation of the transitional time limits in the amending Act and whether it applies to this application.  The amending Act, in the Migration Litigation Reform Act 2005 (Cth) No. 137 of 2005 in Schedule 1, Part 2, clause 42(a) provides:

   Where proceedings are commenced on or after the commencement date in relation to a migration decision made before the commencement date, the actual notification of the decision is given before the commencement date:

   (a) Section 477 of the Migration Act 1958 applies if the actual notification of the decision took place on the commencement date;

   Consequently, an application in relation to a decision published before December 2005 is incompetent if it is filed in the Court after Thursday 23 February 2006, subject to the proviso that the provision will only have effect if the Court can be satisfied that actual notification occurred prior to 1 December 2005.

4. The applicant stated in his application “Date when notification of the decision was received by the applicant: 6 August 2003”. Applying s.477(2), the 84 days expired on close of business of the Court registry on 23 February 2006. The application filed on 24 February falls outside of the transitional period and is incompetent. However, to ensure that the applicant is not disadvantaged by some oversight on my part or a misunderstanding as to the operation of the transitional time limits, I indicated that I would consider issues other than the application for an extension of time.

5. The main thrust of the applicant’s application is as follows:

   The applicant applies for an order that the respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the following decision.

   The applicant identified the decision as the one made by the Tribunal on 9 July 2003 and notified to the applicant on 6 August 2003.  For the avoidance of doubt, this is the decision of Tribunal member, Kim Rosser, reference no: N03/46382.  The applicant identified the grounds as:

   1.Judicial review is sought on the grounds that the Refugee Review Tribunal failed to accord the natural justice.

   2.Judicial review is sought on the grounds that the Refugee Review Tribunal made error of law being jurisdictional error in that the Tribunal identified the wrong issue to determine my case.

   3.Judicial review is sought on the grounds that the Refugee Review Tribunal failed to exercise its jurisdiction under Migration Act and/or acted in excess of its jurisdiction.

6. These grounds were not particularised.

7. On 31 March 2006, without leave of the Court, the applicant attempted to file an amended application which contained new grounds in the following form:

   1. The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:

   Particulars:

   A. There was no evidence that the Tribunal did give me the opportunity to comment on the DFAT independent country information:

   i)      before the hearing; or

   ii)      during the hearing.

   2. The Refugee Review Tribunal acted in excess of its jurisdiction in relation to credibility:

   Particulars:

   A. There is no evidence to support the Refugee Review Tribunal’s finding that:

   i)      The applicant’s evidence concerning his political activities was vague and unconvincing.

8. An attempt was made at the same time to file an outline of submissions which addressed the two issues, namely the Department of Foreign Affairs and Trade information and the credibility issue.  I will return to these issues.

9. In the original proceedings in this matter before His Honour Driver FM, contained in the decision of SZBJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 626 at [7], His Honour found:

   There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. I must dismiss the application and I do so.

10. The applicant exercised his right of appeal to the Federal Court in proceedings NSD857/2005.  His Honour Hely J dismissed the application on 6 September 2005 and concluded at [9]:

    There is nothing in the outline which addresses, let alone casts any doubt upon, the RRT’s credibility findings. Apart from the misconceived reliance on Muin and Lie and the non-provision of country information to which I earlier referred, there is no particularisation or exposure of a case that the procedures adopted by the RRT in determining the application were in any way inappropriate or unfair. When I pointed these matters out to the appellant he sought an adjournment of some two or three months so that he could put in another written submission which did not contain any mistakes. I refused that application as this matter was fixed for hearing on 28 June 2005 and the appellant has had a reasonable time within which to prepare his appeal. The RRT’s decision was given over two years ago and the appellant has had ample time since then to give consideration to any deficiencies which may exist in that decision. There was nothing put before me which would indicate that there is any practical utility in a further adjournment. The appellant must simply face up to the fact that he lost his case before the RRT because the RRT did not believe his claims.

11. The applicant then exercised his right to seek Special Leave to Appeal to the High Court and filed an application identified as S480 of 2005.  The matter came before the court on 9 February 2006 and His Honour Hayne J in the transcript of proceedings made the following observations:

    The applicant, a citizen of Bangladesh, seeks special leave to appeal against orders of a single judge of the Federal Court of Australia (Hely J) exercising the appellate jurisdiction of that Court. By those orders, Hely J dismissed the applicant’s appeal against orders of the Federal Magistrates Court refusing relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Refugee Review Tribunal affirming the refusal by a delegate of the Minister to grant the applicant a protection visa.

    Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

    The written submissions filed in support of the application for special leave follow a common form and develop no real argument in support of the application. In any event, there is no reason to doubt the correctness of the decision of Hely J.

    Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

12. 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.  Although leave to file the amended application and accompanying submissions has not been formally granted,  I indicated that I would consider that material as the applicant is self-represented and obviously does not understand the rules and requirements in respect of proceedings before the Court.  The material contained in the amended application and the submissions canvass the same issues that were before the courts previously and has been subject to their review and deliberations.  The applicant did not placed any other material before the Court in support of his application that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction.

13. I refer to the grounds in defence of the application contained in the respondent’s response filed on 16 March 2006.  I accept that:

    a)The application does not establish any jurisdictional error in the decision of the Tribunal dated 9 July 2003 and handed down on 6 August 2003.

    b)The application for review does not raise any arguable case for relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.

    I also note further grounds admitted by the respondent in item four of the response.  I do not believe it is necessary for each of these issues to be individually addressed as the applicant was not able to demonstrate that there were any grounds warranting further review of the Tribunal’s decision.

14. Where there is a question whether a decision of the Tribunal is or is not a privative clause decision and the issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court, this Court is bound by that Federal Court decision.  In this case, there exists one further step, being an application seeking leave to appeal to the High Court, which was denied because Their Honours were satisfied with the decision of the court below.  The Tribunal reached the conclusion that it did which was set out in its decision; there is no basis in which jurisdictional error may be established as a consequence.  The decision of the Tribunal is a privative clause decision.  I have given the applicant the benefit of the doubt and hypothetically put to one side his automatic exclusion due to the operation of the Migration Litigation Reform Act and the transitional provisions.  It is clear on material before me that the applicant would be unable to succeed even in the absence of this exclusion.  I believe the application should be dismissed as being out of time and consequently incompetent.

Conclusion

1. For the reasons set out above, I believe the matter should be dismissed.

2. I am satisfied an order for costs and disbursements should be made in this matter.  I order that the applicant pay the first respondent’s costs of and incidental to the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date:  6 April 2006