SZBLE v Minister for Immigration - [2006] FMCA 807

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBLE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 807

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – RRT decision previously reviewed by the Federal Court and found to be free from error – objection to the competency of the present application upheld.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.474, 477
Migration Litigation Reform Act 2005 (Cth)

Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641
NAZV v Minister for Immigration [2004] FCA 1343
NAZV v Minister for Immigration [2005] FCAFC 76
NAZV v Minister for Immigration [2005] HCATrans 724
SZGAP v Minister for Immigration [2005] FCA 1785

First Applicant:

SZBLE

Second Applicant:

SZBLF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2818 of 2005

Judgment of:

Driver FM

Hearing date:

30 January 2006

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Mr I Muthalib
Blake Dawson Waldron

INTERLOCUTORY ORDERS

The Refugee Review Tribunal is joined as the second respondent to the application.
The judicial review application is dismissed as incompetent.
No further judicial review application by these applicants to review the decision of the Refugee Review Tribunal made on 20 November 2003 and handed down on 16 December 2003 or the decision of the Minister’s delegate that preceded the Refugee Review Tribunal decision be accepted for filing in this Court, except by leave of the Court.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,500.
The Minister is to enter these orders and cause a sealed copy of these orders to be served on the applicants by ordinary pre-paid post at their last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG of 2005

SZBLE

First Applicant

SZBLF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion by the respondent Minister of which notice was given on 25 November 2005 seeking the dismissal of a judicial review application pursuant to rules 13.10(a) and (b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The motion also seeks summary dismissal on the basis that the judicial review application is barred on the basis of the doctrine of res judicata and also issue estoppel and Anshun estoppel. The motion also seeks some ancillary relief to prevent the filing of further applications by these applicants. The Minister also relies upon a notice of objection to the competency of the judicial review application, also filed on 25 November 2005. The judicial review application was filed on 14 October 2005.
The motion and objection to competency were listed for hearing today at a directions hearing conducted by Registrar McIllhatton on 8 November 2005. The first applicant attended in person with the assistance of a Gujarati interpreter and consented to the orders made by the Registrar at that time, including the order listing the motion and objection to competency for hearing this morning. In addition, the first applicant was advised in writing by the Minister's solicitors on 25 November 2005 and on 25 January 2006 of today's court fixture, and provided with the relevant documents. There has been no appearance by either applicant when the matter was called twice this morning. There was no appearance by either applicant when they were called personally by name. I have elected to proceed to hear the Minister's motion and objection to competency in their absence.
The motion and objection are supported by the affidavit of Ishan Fouad Muthalib, made on 24 November 2005 and filed the following day. I received that affidavit as evidence in these proceedings. The facts are adequately summarised in written submissions filed on 27 January 2006 in support of the Minister's motion and objection to competency. I accept the accuracy of the facts deposed to by Mr Muthalib and summarised in the Minister's written submissions. I adopt paragraphs 4 to 15 of the Minister's written submissions for the purposes of this judgment:
The applicants, a husband and wife, who are citizens of India, arrived in Australia on 29 May 2003.
On 24 June 2003 the applicant husband, who is applicant SZBLE in these proceedings (the applicant husband), lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) pursuant to the Migration Act 1958. That application included his wife, who is applicant SZBLF, in these proceedings. A delegate of the respondent refused to grant a protection visa on 27 June 2003. The applicant husband applied to the Refugee Review Tribunal (the “RRT”) for a review of that decision on 23 July 2003, and on 16 December 2003 the RRT affirmed the decision not to grant the applicant a protection visa (the Decision).
The Decision
The basis of the applicant husband's application was that he feared persecution in India at the hands of a particular police constable and an unidentified terrorist group.[1] The applicant husband claimed that he owned a grocery shop and that a police constable, who had been a regular customer of his, refused to pay his bill, threatened the applicant husband and his family, bashed him and demanded further groceries without payment. The applicant husband also claimed that he received threatening phone calls from unknown persons who were “possibly terrorist gangs.”[2]
[1] court book, pages 9, 33-34.
[2] court book, page 33
The RRT invited the applicant husband to attend a hearing to give oral evidence and present arguments in support of his application, however he advised the RRT that he did not want to come to the hearing.[3]
[3] court book, pages 57-58, 63
The RRT was not satisfied that the applicant husband had a well‑founded fear of persecution in India. The principal factual finding made by the RRT that led to this conclusion was that, whilst it accepted that the applicant husband was subjected to extortion and threats of violence from a particular police officer, it was satisfied that these threats emanated from a corrupt police officer and his “cronies” who were motivated by greed and that therefore it was not satisfied that the applicant husband and his family had been persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion. Rather, all of the applicant husband's problems were criminal matters which were essentially matters for the local authorities and falling outside the scope of the Convention.[4] The RRT also found that the applicant husband would be able to obtain effective state protection from extortion and corrupt police officers.[5]
[4] court book, page 74 [42].
[5] court book, page 75 [44]-[48].
Litigation History: Previous Judicial Review Proceedings
The Decision has been the subject of previous judicial review proceedings instituted by the applicant husband, including an appeal and an application for special leave to appeal to the High Court.
Federal Court Application: NSD42/2004 (NAZV)
On 12 January 2004, the applicant husband filed an application in the Federal Court seeking review of the Decision (Affp4).
On 19 October 2004, Moore J dismissed the application with costs (Affp23-29). His Honour said that:
In my opinion, the approach of the Tribunal to the claims of the applicant was unexceptionable. No error is evident in the Tribunal's consideration of the material before it let alone an error which might constitute jurisdictional error". (Affp28)
Federal Court Proceedings: NSD1623/2004 (NAZV)
On 8 November 2004, the applicant husband filed a notice of appeal in the Federal Court appealing from the decision of Moore J (Affp31-33).
On 6 May 2005, Tamberlin, Conti & Jacobson JJ dismissed the appeal with costs. (Affp37-41). Their Honours said:
The notice of appeal raises no appealable issue. No error on the part of the primary judge has been demonstrated. (Affp41)
High Court Proceedings: S239/2005 [NAZV]
On 23 May 2005, the applicant SZBLE filed an application for special leave to appeal to the High Court from the judgment of Tamberlin, Conti and Jacobson JJ.
On 8 September 2005, Hayne and Callinan JJ, dismissed the application for special leave to appeal.
The Federal Magistrates Court Proceedings: SYG2818/2005 [SZBLE & SZBLF] - The Present Application
The present application, which is seeking to review the same RRT decision, was filed in the Federal Magistrates Court on 4 October 2005 (Affp48-52).
The judicial review application relates to a decision of the Refugee Review Tribunal, it is appropriate that the RRT be joined as the second respondent to the application and I so order. The RRT decision has been the subject of earlier proceedings in the Federal Court and the High Court by the first applicant. In disposing of the proceeding before him on 19 October 2004 Moore J said:
In my opinion, the approach of the Tribunal to the claims of the applicant was unexceptionable. No error is evident in the Tribunal's consideration of the material before it let alone an error which might constitute jurisdictional error. The application should be dismissed with costs.
His Honour's decision, although not strictly binding upon me, is highly persuasive and judicial comity requires that I should follow it unless it is clearly wrong. I am bound by the decision of the Full Court which dealt with an appeal by the first applicant from the decision of Moore J. In disposing of the appeal on 6 May 2005 the Full Court said, at paragraph 14:
The notice of appeal raises no appealable issue. No error on the part of the primary judge has been demonstrated. The appeal must be dismissed with costs.
The first applicant sought special leave to appeal to the High Court from the decision of the Full Federal Court. Special leave was refused on 8 September 2005. In refusing special leave Hayne and Callinan JJ said this:
Three complaints are made about what was done in either the courts below or the Tribunal: that the Tribunal had no evidence which supported its decision; that the Tribunal’s decision was affected by errors of the kind identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ((2002) 76 ALJR 966; 190 ALR 601); and that the Tribunal did not follow correct procedures. 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 courts below or in the Tribunal, which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error.
The present judicial review application is regrettably a continuation of the theme established by the sorry litigation history in this matter. The judicial review application asserts jurisdictional error only in the most general terms. It appears to have been prepared by reference to some form of template. I have no reason to differ from the view already expressed by Moore J in the original proceedings. That decision, coupled with the decisions on appeal by the Full Federal Court and by the High Court in refusing special leave to appeal, establish in my view conclusively that the decision of the RRT is free from any jurisdictional error.
I am aware of a recent decision of the Federal Court to the effect that an allegation of procedural unfairness, if not previously made, can constitute a fresh proceeding that the Federal Court should deal with, notwithstanding the earlier dismissal of a judicial review application on a different basis[6]. That is a matter for the Federal Court but in my view this Court should follow earlier decisions of the Federal Court establishing that there is no jurisdictional error in the relevant tribunal decision unless that decision can be shown to be clearly wrong. Nothing has been advanced in this case to establish any error on the part of the Federal Court in the earlier proceedings. On the contrary, the High Court has emphatically stated that the Federal Court was not wrong.
[6] Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641
In my view, the effect of the conclusive finding in the previous proceeding that there is no jurisdictional error means that the RRT decision is a privative clause decision and that this Court has therefore no jurisdiction to entertain the present judicial review application any further. That is because of the operation of s.474 of the Migration Act 1958 (Cth) (“the Migration Act”). A further consequence is that the present application has been filed significantly out of time. I do not think that anything of any great moment turns on whether it is s.477(1) or s.477(1A) which is the operative time limit provision, although I note a recent decision of the Federal Court pointing to the probable application of s.477(1) in some circumstances[7].
[7] SZGAP v Minister for Immigration [2005] FCA 1785
I find that the decision of the RRT is a privative clause decision and that the present judicial review application was filed well out of time. Hence, I uphold the objection to competency and I dismiss the judicial review application as incompetent.
The effect of the Migration Litigation Reform Act 2005 (Cth) (“the Migration Litigation Reform Act”) is that no further application to review the same RRT decision could be commenced in this Court except by leave. That leave would be required in order to obtain an extension of time.
Having regard to the unfortunate litigation history in this matter the leave of the Court should be sought in any event. In addition, the Migration Litigation Reform Act removes from the Court jurisdiction to review any primary decision which was appealable to the RRT and which preceded the decision of the RRT. In those circumstances, no application to review a decision of the Minister's delegate preceding the RRT decision should be accepted for filing except by leave of the Court.
I will order that no further judicial review application by these applicants to review the decision of the Refugee Review Tribunal made on 20 November 2003 and handed down on 16 December 2003, or the decision of the Minister's delegate that preceded the RRT decision, be accepted for filing in this Court except by leave of the Court.
The application having been dismissed, costs should follow the event. The Minister seeks costs on an indemnity basis fixed in the amount of $2,500. I have upheld the objection to competency but I have considered it unnecessary to deal with the Minister's motion for summary dismissal. However, there is no doubt on the basis of the facts established on the objection to competency that the present judicial review application is frivolous and vexatious. The application is merely a template seeking to prolong proceedings for no good purpose.
I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $2,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 June 2006