SZBQW v Minister for Immigration
[2005] FMCA 1506
•11 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQW v MINISTER FOR IMMIGRATION | [2005] FMCA 1506 |
| 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. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549
| Applicant: | SZBQW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2181 of 2005 |
| Delivered on: | 11 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Bengali interpreter.
| Advocate for the Respondent: | Mr J Kettle |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The respondent’s Notice of Objection to Competency filed on
26 August 2005 is upheld.
The application for judicial review filed on 15 August 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 Miss K Rosser File No: N00/3287) made on 9 August 2002 and handed down on
29 August 2002 or the decision of the Delegate of the Minister for Immigration (of Paul Mendoza) handed down on 17 March 2000 is to be accepted for filing without leave of this Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,400 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2181 of 2005
| SZBQW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 26 August 2005, the respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submits that the application should be dismissed as this Court does not have jurisdiction to hear it.
In the alternative, by a Notice of Motion filed on 29 August 2005, the respondent seeks an order dismissing the application filed on
15 August 2005 on the ground that pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) the proceedings are an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
15 August 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 August 2002 and handed down on 29 August 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 17 March 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the respondent tendered and applied for the affidavit of John Stuart Kettle sworn on 26 August 2005 to be admitted into evidence.
In response to the respondent’s applications, the applicant tendered and applied for his affidavit sworn on 22 September 2005 to be admitted into evidence.
Background
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 “SZBQW”.
The applicant, who travelled to Australia from Bangladesh, most recently arrived in Australia on 13 January 2000. On 9 March 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 17 March 2000 the delegate refused to grant a protection visa and on 7 April 2000 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed to fear persecution for reasons of his race and political opinion in Bangladesh. He claimed that he was a member of the Bihari minority, was persecuted by Bangladesh nationals, and had false charges of murder laid against him following a demonstration on 15 January 1998. Before the Tribunal he produced a number of documents to support his claims including a purported “first information report” (“FIR”) for the false charges he claimed had been laid against him.
Litigation history
Mr Kettle, Solicitor for the respondent, prepared a convenient summary of the litigation history of the application which I have adopted and reproduced as follows:
On 29 August 2002, the Tribunal handed down its decision affirming the decision of the Delegate to refuse the applicant a protection visa.
On 18 September 2002, the applicant filed an application for judicial review in the Federal Court of Australia and given proceedings number N971 of 2003. The application pleaded without any relevant particulars that the Tribunal ignored the merits of the claim, the Tribunal made a number of errors, and did not take into account relevant considerations.
On 13 December 2002, one working day prior to the scheduled hearing, the applicant filed a notice of discontinuance by consent.
Over ten months later, on 15 October 2003, the applicant filed a further application for judicial review in the Federal Magistrates Court of Australia. The proceedings were allocated the proceedings number [SYG]2176 of 2003. The grounds in the application including that the Tribunal did not consider the application and that the matter was identical to the Muin and Lie proceedings, that the Tribunal denied the application procedural fairness and that the decision was affected by “error of law”. No supporting particulars were supplied with the application.
On 22 March 2004, the Honourable Federal Magistrate Driver dismissed the application on the basis that it was an abuse of process. His Honour noted that the application before him suffered from the same vice as the earlier application in the Federal Court, namely, that it lacked particularity. Further, his Honour noted that the applicant had waited approximately ten months after discontinuing his proceedings in the Federal Court before recommencing in the Federal Magistrates Court, and that he had failed to comply with procedural orders in either Court.
On 2 April 2004 the applicant filed a notice of appeal in the Federal Court of Australia. These proceedings were allocated the proceedings number N466 of 2004. The grounds in the notice of appeal included that the Federal Magistrate had “failed to consider that the RRT’s decision was affected by error of law, lack of procedural fairness and denial of natural justice issues at the time of deciding my protection visa application (sic)”.
On 18 May 2004, the Honourable Justice Branson upheld the respondent’s notice of objection to competency and dismissed the notice of appeal as incompetent.
On 4 August 2004, the applicant filed an application for special leave to appeal with the High Court. Those proceedings were allocated proceedings number S279 of 2004. On 5 August 2005, the Honourable Justices McHugh and Heydon ordered that the application for special leave to appeal be dismissed.
On 15 August 2005, the applicant filed the current application for judicial review in the Federal Magistrates Court asserting, without particulars, that the Tribunal exceeded its jurisdiction, was biased, denied the applicant procedural fairness and made a bland reference to Plaintiff S157/2002 v Commonwealth of Australia. The application also seeks impermissible merits review of the Tribunal decision.
Respondent’s application
Mr Kettle, appearing for the respondent, provided written submissions in support of his application and I have adopted paragraphs 16-26 for the purpose of this judgment:
A notice of objection to competency was filed by the respondent in the Federal Magistrates Court of Australia on 26 August 2005 on the basis that the application for judicial review was filed outside the 28 day time limit specified under s.477(1A) of the Migration Act 1958 (Cth) (“the Act”).
The relevant Tribunal decision was handed down on 29 August 2002. The current application was filed on 15 August 2005. The current application was therefore filed almost three years outside the 28 day period. Accordingly, there is non-compliance with s.477(1A) of the Act.
It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its strong findings that the application was an unreliable witness and had fabricated his claims. Such findings are matters of fact for the Tribunal: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
Accordingly, the Tribunal decision handed down on 29 August 2002 should properly be regarded as a “privative clause decision”. As the applicant has filed this application for judicial review of a privative clause decision outside the mandatory statutory time limits, the Court has no power to extend that time and accordingly no jurisdiction to hear the application.
Alternatively, the respondent moves on the notice of motion filed
29 August 2005 and contends that the application ought to be summarily dismissed.Federal Magistrate Driver noted the following in the previous proceedings before the Federal Magistrates Court:
“In my view, it is most unlikely that the application in this Court would succeed. The lack of particularity of this application, when considered in the light of the lack of particularity in the earlier application in the Federal Court, and the failure by the applicant to comply with procedural orders in either court, leads me to the view that the present application is vexatious and an abuse of process.”
The current proceedings are also an abuse of process and ought to be dismissed as pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules. The current application suffers from the same vice as the previous applications, namely a lack of particularity, and it is open to this Court to find, as indeed Federal Magistrate Driver found, that this constitutes an abuse of process: SZBJM v MIMIA [2004] FCA 404 at [30] per Madgwick J.
In the current application, the applicant seeks to reagitate grounds that could have been argued in the previous proceedings dismissed in the Federal Magistrates Court and on appeal to the Full Federal Court. It is clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action as in previous proceedings: SZCXD v MIMIA [2004] FCA 1650 per Wilcox J at [11]; Samson v MIMA [2001] FCA 837, SZAMM v MIMIA [2003] FMCA 377 per Barnes FM.
Having regard to the applicant’s litigation history, it is clearly open to the Court to draw the inference that the applicant has filed the present application for the collateral purpose of extending the period of his stay in Australia: NALE v MIMIA [2003] FMCA 366 (22 August 2003) at [12].
Also, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v MIEA (1997) 78 FCR 314 at 323-326.
These proceedings are a clear abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court.
Applicant’s submissions
The applicant filed an affidavit prior to the hearing and indicated he would rely on its contents. This document contained a number of generic submissions which did not appear to sufficiently address the issues before the Court. The initial part of this document was a brief background of the applicant and was followed by details of his application and attendance at various hearings. A reference was made to the High Court decision of Plaintiff S157/2002 v The Commonwealth. However, no reference was made to the issues being raised. Attached to the back of the document appeared to be a list of grounds which were generic in nature and unparticularised and bore no reference to the Tribunal’s decision. Again, there were a number of references to recent High Court decisions with no apparent link to the grounds.
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 15 August 2005 and seeks review of the Tribunal decision made on 9 August 2002 and handed down on 29 August 2002, which is a period of approximately 36 months. In the interim period, an application to review the decision of the Tribunal has been listed in the Federal Court, with the proceedings being withdrawn prior to hearing, the Federal Magistrates Court, on appeal to the Full Federal Court and a special leave application to the High Court. No error has been found in the Tribunal’s decision. 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) should not apply.
I am guided by the decisions of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) 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 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J. Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) 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 purposes 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 a decision 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 (2 October 2004) 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.
Conclusion
The application filed on 15 August 2005 relates to a privative clause decision and has not been filed within 28 days of the applicants being notified of the said decision as required by s.477(1A) of the Act. The 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.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 14 October 2005
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