SZCII v Minister for Immigration
[2006] FMCA 492
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCII v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 492 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – Refugee Review Tribunal decision previously reviewed by the High Court, Federal Court and Federal Magistrates Court – no jurisdictional error found – conclusive outcome that the Refugee Review Tribunal decision is a privative clause decision – application for judicial review dismissed as incompetent. |
| Federal Magistrates Court Rules 2001(Cth), r.13.10(c) Migration Act 1958 (Cth), ss.91X, 477(1A), 483A |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs |
| Applicant: | SZCII |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2730 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the aid of a Hindi interpreter |
| Advocate for the Respondent: | Ms N Johnson |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The first respondent’s Notice of Motion filed on 19 October 2005 is upheld.
The first respondent’s Notice of Objection to Competency filed on 6 October 2005 is upheld.
The application for judicial review filed on 26 September 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 Ms Antoinette Younes File No: NO3/45988) made on 7 November 2003 and handed down on 3 December 2003 or the decision of the delegate of the Minister for Immigration (of K Gabriel File No: CLF 2002/64805) handed down on 14 March 2003 is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,300 on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2730 of 2005
| SZCII |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 6 October 2005, the first respondent objects to the jurisdiction of this Court to hear the applicant’s application on the basis that:
1.The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (‘the Tribunal decision’) on 7 November 2003 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 and s.483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
2.The applicant has not identified any other decision that is sought to be reviewed.
In the alternative, by a Notice of Motion filed on 19 October 2005, the first respondent seeks the following orders that:
1.The application filed on 26 September 2005 be dismissed on the grounds that:
(a)The doctrine of res judicata applies and is a complete bar to the application.
(b)The doctrine of issue estoppel applies and is a complete bar to the application.
(c)Anshun estoppel applies and there are no special circumstances to justify its non-application.
(d)Pursuant to Part 13.10(b) of the Federal Magistrates Court Rules, the proceedings are frivolous and vexatious.
2.That the applicants pay the respondent’s costs on an indemnity basis.
3.That no further application by the applicant to review the decision of the Refugee Review Tribunal dated 7 November 2003 and handed down on 3 December 2003 be accepted for filing except without leave of the Court.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) and invoking s.475A of the Act. It was filed on 26 September 2005 in the Sydney Registry of the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 November 2003 and handed down on 3 December 2003. The Tribunal affirmed the decision of the delegate of the first respondent (“the delegate”) made on
14 March 2003 refusing to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZCII”.
For the purpose of this Notice of Objection to Competency and Notice of Motion, the first respondent tendered and applied for the affidavit of Andrea Jane Nesbitt affirmed on 19 October 2005 (“affidavit of Ms Nesbitt”) to be admitted into evidence.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 19 November 2002. On 18 December 2002, he lodged an application under the Act for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 14 March 2003, a delegate of the Minister refused to grant a protection visa and on 20 March 2003, the applicant applied to the Tribunal for review of the delegate’s decision (affidavit of Ms Nesbitt, Annexure B, page 2).
The Tribunal in its decision under the heading ‘Claims and Evidence’ lists the claims made by the applicant in his application for a protection visa:
1.Since his childhood, he has had an interest in politics and took an active part in the social and political activities of the Indian Union Muslim League (“IUML/Party”) Party. After the completion of his schooling, he became an active member and a prominent figure of the Party. He has made donations to the Party for the development and welfare of the ‘weaker section of his Muslim minor community’.
2.When he was in high school, he protested for the rights of the minority Muslim community in Kerala by ‘sitting on dharna and gone for hunger strike against the atrocity of local administration who was acting under the influence of political parties supported by Hindus’.
3. As a result of his ‘popularity in the area’, he became the target of the BJP, RSS and the Shiv Sena who were ‘getting jealous of him due to his popularity among people and his chances of claiming local assembly seat’. In 2000, ‘he was attacked by the BJP, RSS and the Shiv Sena extremists who beaten him near to death and was hospitalised for a week’. He reported the matter to the police who did not take ‘proper action…instead he received more life threats afterwards’.
4. In 2001, the Indian Prime Minister, Atal Bihari Vajpayee visited Kerala for holidays and during the visit, the applicant and his family were kept under 24 hour surveillance and treated as extremists.
5. Following the February 2002 Gujarat train incident, the applicant’s shop was burnt down and he ‘saved his life by running away from the scene’.
6. Subsequently, the applicant and his family have consistently been receiving life threats and in March 2002, the applicant was attacked by BJP, RSS and Shiv Sena extremists. As a consequence of the attack, the applicant ‘sustained serious injuries and been hospitalised for a month’.
7. There has been a ‘terrorists attack on Akshardam temple in Gujarat which was a coward act of firing indiscriminately and killing more than 40 Hindu pilgrims’. Since then, the situation has become worse for the applicant who has been ‘declared in the list of the extremists group of BJP, RSS, and Shiv Sena’.
8. There is no chance of relocation for him because the ruling party (BJP), RSS and Shiv Sena are “everywhere to harm” him.
(affidavit of Ms Nesbitt, Annexure B, pp.4-5)
Litigation history
The affidavit of Ms Nesbitt provides a convenient summary of the litigating history of the applicant, which I have adopted and reproduce below:
1.On 7 November 2003, the Tribunal constituted by Antoinette Younes made a decision to affirm a decision of the delegate of the respondent refusing the applicant a protection visa. The decision was handed down on 3 December 2003.
2.On 30 December 2003, the applicant lodged an application for judicial review in the Federal Magistrates Court in respect of the Tribunal decision handed down on 3 December 2003. Those proceedings were given the Federal Magistrates Court proceedings no. SZ2906 of 2003.
3.On 3 November 2004, Federal Magistrate Barnes ordered that the application be dismissed with costs.
4.On 30 November 2004, the applicant filed an application for an extension of time, affidavit and draft notice of appeal in the Federal Court of Australia, in respect of the decision made by Barnes FM on 3 November 2004. Those proceedings were given Federal Court proceedings no. NSD1777 of 2004.
5.On 9 February 2005, Hely J ordered that the application for an extension of time be granted.
6.On 4 May 2005, Wilcox J ordered that the appeal be dismissed with costs.
7.On 30 May 2005, the applicant lodged an application for special leave to appeal in the High Court. The proceedings were allocated High Court proceedings no. S56 of 2005.
8.On 30 August 2005, McHugh and Heydon JJ dismissed the application for special leave to appeal.
9.On 26 September 2005, the applicant filed an application for judicial review in the Federal Magistrates Court at Sydney seeking review of the Tribunal decision handed down on 3 December 2003.
Reasons
I adopt the reasoning of my previous decision in SZBCU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 351.
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 26 September 2005 and seeks review of the Tribunal decision made on 7 November 2003 and handed down on 3 December 2003, which is a period of approximately 39 months. In the interim period, an application to review the decision of the Tribunal was listed in this Court before Her Honour, Barnes FM; in the Federal Court before His Honour, Wilcox J; and a Special Leave Application was made to the High Court. The Special Leave Application was dismissed by Their Honours McHugh and Heydon JJ. No error was found in the Tribunal’s decision.
The Notice of Objection to Competency raises the issue of whether the decision of the Tribunal is a privative clause decision as defined under s.474 of the Act. If the respondent succeeds in this contention, then the Court would be barred from giving relief sought by the applicant, and the applicant’s present application would be out of time under s.477(1A). The respondent’s objection to competency would succeed if, applying Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the Court held that the Tribunal’s decision was not affected by jurisdictional error.
In the original proceedings in this matter, SZCII v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 793, Barnes FM found at [31] :
No jurisdictional error has been established. Accordingly the application must be dismissed.
The applicant exercised his right of appeal to the Federal Court in proceedings NSD1777/2004. His Honour Hely J granted the applicant an extension of time within which to lodge a Notice of Appeal. This appeal was subsequently heard by His Honour Wilcox J who dismissed the application on 4 May 2005 concluded in SZCII v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 571 at [11]:
As the appellant has been unable to put any alleged jurisdictional error to me, and I have been unable to discern any myself, I have no option other than to dismiss the appeal.
The applicant then exercised his right to seek Special Leave to Appeal to the High Court and filed an application on 30 May 2005 in proceedings S256/2005. The matter came before the court on
30 August 2005 with 28 other similar applications at the same time. In the transcript of proceedings McHugh J made the following observations:
The Refugee Review Tribunal rejected the claim of the applicant, an Indian national, for a protection visa on the basis of findings that the applicant’s “charitable and altruistic” involvement with the Indian Union Muslim League (“IUML”) was not sufficiently significant so as to cause the BJP, RSS and the Shiv Sena parties to target the applicant. The Tribunal also found that the Indian authorities provided the applicant with adequate protection from criminal attacks.
The Federal Magistrates Court held that the Tribunal did not fail to take into account a relevant consideration or fail to accord the applicant procedural fairness.
The Federal Court held that there were no grounds on which the Tribunal’s decision could be reviewed and that the applicant was unable to identify any jurisdictional error on the part of the Tribunal.
The applicant’s special leave application complained of errors of law and procedural errors. The applicant also relied on Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601, but did not demonstrate the necessary factual basis. The appeal has no prospects of success.
The application is dismissed.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application. I publish our joint reasons.
I am satisfied that the following requirements have been met, 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)Although not expressly stated, the courts made findings to the effect that the decision is a privative clause decision.
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, such that the time limit under s.477(1A) of the Act should not apply.
I am guided by the decisions 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 as incompetent applications for review filed in similar circumstances. Both of these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 per Conti J.
Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 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 purpose of any proceedings in this Court (and where that issue has been conclusively determined by previous hearings and affirmed on appeal to the Federal Court), this Court is bound by the decisions 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 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.
In making this decision, I am also guided by the submissions of Ms Johnson for the respondents that the grounds of review in these proceedings are the same, or substantially the same, as those raised before Barnes FM. Consequently, these proceedings offend the doctrine of res judicata. To the extent that these proceedings raise any grounds for review not raised in previous proceedings, the application should be estopped from raising those grounds: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. I believe that the submissions made by Ms Johnson in support of her application are correct, but I do not believe it is necessary for me to consider those submissions in my decision as I do not believe that this Court has jurisdiction in light of my reasons above.
Conclusion
The application filed on 26 September 2005, relates to a privative clause decision that has not been filed within 28 days of the applicant being notified of the said decision, as required by s.477(1) of the Act. The first respondent’s Notice of Objection to Competency is upheld and the applicant’s substantive proceeding should be dismissed.
I am satisfied that an order for costs on an indemnity basis should be made. I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $4,300.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 10 April 2006
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