SZBML v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FMCA 431
•21 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBML v MINISTER FOR IMMIGRATION | [2004] FMCA 431 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – jurisdiction of the Federal Magistrates Court – decision of the RRT previously found by the Federal Court to be a privative clause decision – current application filed out of time – application summarily dismissed as incompetent. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.477
Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 20
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24
| Applicant: | SZBML |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1965 of 2003 |
| Delivered on: | 21 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 21 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms B Rayment Sparke Helmore |
INTERLOCUTORY ORDERS
The application is summarily dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1965 of 2003
| SZBML |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of motion filed on 15 January 2004 and a notice of objection to competency filed on 5 May 2004 in respect of an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The relevant decision of the RRT was made on 18 June 2002 and was handed down in July 2002. The relevant background facts are set out in the respondent Minister's outline of submissions. For the purposes of the motion and objection I adopt paragraph 9 through to paragraph 24 of those written submissions for the purposes of this judgment:
The applicant is a citizen of Sri Lanka who claimed to be involved in the Janatha Vimukthi Peramuna (“JVP”) during the 1970’s. He claimed that he was arrested and detained on several occasions because of this involvement.[1]
[1] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 9.2.
The applicant claimed to have lived in the Middle East from 1977 to 1994 and then returned to Sri Lanka where he worked in social services, as a businessman and also as an influential film producer. He claimed to have been a public critic on various controversial issues such as election fraud, killings, the rights of Tamils and “discrepancies in war”. He claimed that he made films about the government crackdown on a terrorist rehabilitation clinic and also participated in a demonstration. The applicant claimed that he played a pivotal role in having the LTTE and government enter into negotiations.[2]
[2] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, pages 9.5 to 10.2.
The applicant claimed that he was threatened on several occasions and that his house was attacked in 2000 because of his outspoken commentary. He asserted that he went into hiding for one year before fleeing Sri Lanka in 2001.[3]
[3] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, pages 9.10.
The RRT accepted that the applicant was a member of the JVP in the 1970s and that he was imprisoned because of this involvement. It also accepted that the applicant had been involved in the production of two social commentary films and in a demonstration.[4]
[4] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 17.3.
The RRT did not accept that the applicant had a high profile in either politics or in the film industry as he claimed, or that he was being sought on account of his political comment or views. The RRT found that the applicant’s evidence in this regard was not credible, describing some of his claims as “preposterous” and “outlandish”.[5]
[5] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 17.3 to 17.10.
On the basis of the independent country information, the RRT found that public critique of the type the applicant claimed he had made was common in Sri Lanka and not a source of persecution.[6]It rejected the veracity of the applicant’s supporting documents because they were undermined by evidence about the applicant’s travel history contained in his passport.[7]
[6] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 18.2.
[7] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 18.6.
The RRT also found that the applicant’s JVP involvement would not bring him to the adverse attention of the Sri Lankan authorities given 25 years had lapsed since he was involved with that party, it was a legal organisation actively involved in politics and also because the applicant had been able to live in Sri Lanka for 10 years pursuing a successful career.[8]
[8] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, page 19.4.
The previous application for judicial review
On 6 August 2002, the applicant filed a draft order nisi in the High Court of Australia to review the RRT decision dated 18 June 2002. Several unparticularised grounds of review were pleaded.[9]
On 7 February 2003, his Honour Justice Hayne made orders remitting those proceedings to the Federal Court.[10]
On 11 June 2003, the solicitors for the respondent filed a notice of motion seeking summary dismissal on the basis that the application disclosed no reasonable cause of action and that the applicant had failed to comply with orders made by the Court.
The applicant’s amended application alleged that the applicant had been denied procedural fairness because he had not been given the “Part B” documents referred to in the delegates decision, as well as other adverse material that the RRT relied upon to reject his claims for protection.[11]
On 13 June 2003, his Honour Justice Selway dismissed the application with costs after hearing the respondent’s notice of motion and.[12]
The current application for judicial review
On 12 September 2002, the applicant lodged an application for judicial review in the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth).[13]
The grounds pleaded in the application for judicial are that the RRT did not follow proper procedures, that the applicant was denied procedural fairness and natural justice, and that his case is identical with “Muin v RRT and Lie v RRT [2002] HCA 20.” The applicant also asserts that he did not lodge his previous application in this Court because of the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia.[14]
The applicant has not provided any particulars that would make the grounds that he has pleaded meaningful.
On 17 December 2003, a directions hearing was held before Registrar Hedge and orders were made by consent. Relevantly, Order 2 required the applicant to file and serve and amended and fully particularised application together with an affidavit in support on or before 30 April 2004.[15]
[9] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “A”, pages 3 to 24.
[10] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “B”, pages 25 to 26.
[11] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “D”, page 32.
[12] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “D”, page 30.
[13] Affidavit of Katie Jane Bryant, 15 January 2004, Annexure “E”, page 36.
[14] (2003) 195 ALR 24.
[15] Affidavit of Katie Jane Bryant, 9 June 2004, Annexure “A”, page 3 to 4.
Ms Rayment, for the Minister, presses the objection to competency based upon s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister also presses the motion for summary dismissal on the basis that the application for judicial review discloses no reasonable cause of action and is an abuse of the process of the Court. In addition, Ms Rayment, for the Minister, orally seeks the summary dismissal of the judicial review application for non-compliance with an order by the Registrar for an amended application of particulars.
I have decided that I should deal first with the objection of competency as it goes to the jurisdiction of the Court. If the Court has no jurisdiction to entertain the application then, in my view, it is unnecessary and probably inappropriate for the Court to make any rulings other than a ruling on jurisdiction. The jurisdictional issue arises in the following way. The applicant was notified of the decision of the RRT in 2002. The present application before the Court was filed on 24 December 2003. Obviously the passage of time between notification of the RRT decision and the filing of the judicial review application exceeds the 28 days prescribed in s.477(1)(a) of the Migration Act. The Court has no jurisdiction to extend that time limit. As the Act is presently framed the time limit in s.477 only applies to privative clause decisions. The decision of the RRT is a privative clause decision if it is not infected by any jurisdictional error.
Ms Rayment read in today's proceedings two affidavits by Katie Jane Bryant made on 15 January 2004 and 9 June 2004. The first affidavit establishes that the decision of the RRT has previously been the subject of a judicial review application in the Federal Court of Australia. The Federal Court, Selway J, on 13 June 2003, summarily dismissed that application as disclosing no reasonable cause of action. It appears that the only ground of review pursued in those proceedings was the same ground of review that is advanced in the present application in this Court. Selway J found in dismissing the application that no error of law had been made by the RRT.
While I am not strictly bound by the decision of the Federal Court, I should follow it, unless there is a good reason not to. The applicant has not advanced any reason for me not to follow the decision of Selway J. In his oral submissions the applicant has, in effect, asked the Court to show some mercy to him. He has referred to his difficult financial and personal circumstances. He is dissatisfied with his legal representation before the Federal Court. However, he has not sought leave to appeal against the decision of Selway J or otherwise to challenge it. Nothing said by the applicant gives me any cause to believe that I would reach any different decision than that reached by Selway J. The effect of the decision in Selway J is that the decision of the RRT is a privative clause decision.
It follows that the time limit on applications to the Court in s.477 of the Migration Act applies. The present application was not made within time and is therefore incompetent. There is no basis on which I can enlarge the time for the application to overcome that incompetence.
The appropriate course for me to take is therefore to order that the application be summarily dismissed as incompetent at this interlocutory stage of the proceeding.
On the question of costs Ms Rayment sought a costs order fixed in the sum of $3,000 on a party/party basis. This would represent approximately 75 per cent of the Minister's solicitor and client costs. After hearing her and the applicant I have decided that an order fixed in the sum of $2,500 would be appropriate. I will so order.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 July 2004
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