SZDBT v Minister for Immigration
[2005] FMCA 1802
•5 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1802 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – objection to the competency of the judicial review application on the basis that it was filed out of time – decision of the RRT previously found to be free from jurisdictional error. PRACTICE AND PROCEDURE – Requirement for leave to file any further judicial review proceedings in the light of changes to the Court’s jurisdiction on 1 December 2005. |
| Migration Act 1958 (Cth), s.474, 477 Migration Litigation Reform Act 2005 (Cth) |
| SZDBT v Minister for Immigration [2005] FMCA 312 SZDBT v Minister for Immigration [2005] FCA 514 Wong v Minister for Immigration (2004) 204 ALR 722 |
| Applicant: | SZDBT |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2553 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 5 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Respondent: | Ms S Burnett Clayton Utz |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Refugee Review Tribunal is joined as the second respondent to these proceedings.
The judicial review application filed on 12 September 2005 is dismissed summarily as incompetent.
No further application to review the decision of the Refugee Review Tribunal handed down on 24 May 2000 or the decision of the delegate that preceded it is to be accepted for filing in this Court, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2553 of 2005
| SZDBT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interim application seeking the summary dismissal of a judicial review application filed on 12 September 2005. The RRT should be joined as the second respondent to the application. The Minister's interim application filed on 11 October 2005 seeks summary dismissal on the basis that the judicial review application discloses no reasonable cause of action or is frivolous or vexatious or an abuse of the Court's process. Also filed on 11 October 2005 was a notice of objection to the competency of the judicial review application relying upon ss.477(1A) and 474(2) of the Migration Act 1958 (Cth) (“the Migration Act”). The interim application and objection to competency are supported by the affidavit of Sharon Anne Burnett filed on 11 October 2005. The Minister also relies upon written submissions and Ms Burnett’s oral submissions.
The applicant opposes the summary dismissal of his application and relies upon his own affidavit made on 25 November 2005. Mr Zipser also prepared written submissions which were filed on 29 November 2005 and also made oral submissions. Relevant background facts are set out in the Minister's written submissions and I adopt as background paragraphs 7 through to 9 of those written submissions:
On 19 March 2004 the applicant commenced proceedings SYG821 of 2004 in the Federal Magistrates Court raising the following grounds of review:
(a)the RRT made its decision in bad faith;
(b)the RRT deprived me of natural justice;
(c)the RRT denied the evidentiary proof of my claim;
(d)the RRT’s decision did not reflect the material facts of my claim;
(e)the RRT has given a decision, which was preset in the back of it's mind;
(f)the RRT mixed up many facts with this decision which affected the decision;
(g)the RRT concentrated in particular fact, while ignored many other facts in this condition;
(h)the RRT made up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim;
(i)my judicial review application is late. I refer to support my review application recent High Court case Plaintiff S157/2002 v. Commonwealth of Australia.
Subsequently in those same proceedings, namely proceedings SYG821 of 2004, the applicant filed an amended application upon which he also relied. The grounds of review raised in that application were as follows:
(a)the RRT denied the applicant procedural fairness and, in so doing, made a jurisdictional error. The applicant raised the following particulars in support of that ground:
(i)the RRT found that I am not credible, referred to at page 72 of the court book,
(ii)the RRT relied on independent evidence regarding the political situation;
(iii)the RRT failed to afford the applicant an opportunity to deal with adverse information, contained in the independent country information relied upon by the RRT, that was credible, relevant and significant to the RRT’s decision;
(iv)the RRT relied on independent country information, referred to at pages 78-143 of the court book, which suggested that country information but this is not independent source.
(b)the applicant relies on a decision of the Full Court of the Federal Court NARV v Minister for Immigration (2001) ALR 494;
(c)the RRT failed to comply with the mandatory requirement of the Migration Act in that the applicant was not provided with the independent country information which was not just about a class of person of which the applicant was a member and which fell outside the meaning of s.424A(3)(A) of the Act, where such information was relevant to the RRT’s decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding: NARV & Ors v Minister for Immigration (2003) 203 ALR 494. In support of background of review the applicant listed a number of particulars which essentially repeated the grounds of review raised in the original application.
In the present proceedings the applicant raises grounds of review in respect of the same decision of the RRT that was the subject of review in the prior proceedings and the second proceedings. The grounds, which are not particularised, are stated as follows:
(a)the RRT exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into account the oral evidence regarding my persecution;
(b)the RRT denied the natural justice in determining my review application that the RRT was biased, or in the alternative, there was an apprehension of biased in the making of the purported decision such that vitiated the said purported decision;
(c)the RRT exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the RRT failed to investigate my genuine claim through the requirements of the Migration Act;
(d)the RRT in its decision, findings and reason has harshly mentioned that I have no credibility, that it’s a credibility problem. In fact the RRT never checked the authenticity of my oral evidence. If it was then the RRT should have given the opportunity to meet a comment on. The RRT itself also did not have any initiative to verify the authenticity of my documentary and oral evidences;
(e)the RRT has denied the procedure fairness by ruling out my claim as fabricated without proper investigation. If the reliance if going to be placed to this, I was not given an opportunity to contest at any time prior to the RRT’s decision;
(f)the RRT did not use the country information as specific, however, the general information gathered by the RRT considered to weigh against my case in the final outcome. The RRT used all the information for matters of reasoning and evaluation of my case for a protection visa. The RRT was pre-occupied and did not have a fresh look. The RRT also failed to consider the Amnesty International Country Information;
(g)I refer to recent High Court decision SAAP v Minister for Immigration (2005) 215 ALR 162;
(h)I refer SZFKL vMinister for Immigration [2005] FCA 931;
(i)I also refer to High Court case Plaintiff S157/2002 v Commonwealth of Australia. This decision will be examined in three respects, implications affecting jurisdiction, time limits and jurisdiction error.
Essentially, the Minister's position is that the legal issues concerning the validity of the decision of the Refugee Review Tribunal (“the RRT”) have already been determined in this Court and the Federal Court, or could have been.
The applicant for his part seeks to raise an additional issue that has not been raised previously. Mr Zipser handed up in court this morning a proposed amended application seeking to raise that additional issue. In substance, the applicant now wishes to assert that the RRT decision is infected with jurisdictional error because of a failure on the part of the RRT to make an inquiry that it was bound to make. The Minister's and the applicant's submissions in relation to the interim application centre upon the principles of res judicata and estoppel. The applicant seeks to take advantage of the recent decision of Lindgren J in Wong v Minister for Immigration (2004) 204 ALR 722 concerning those principles.
In my view, there is a more fundamental issue which bears upon the notice of objection to competency. The RRT decision has previously been reviewed in this Court. In the earlier decision of this court, Smith FM found, at paragraph 30, as follows:
On all the material presented to the court by the applicant, I am unable to find jurisdictional error affecting the Tribunal’s decision.
He then dismissed the judicial review application before him. Smith FM’s decision was considered on appeal by Wilcox J. In his decision, on 25 April 2005, His Honour summarised the decision of this Court and concluded at paragraph 7 as follows:
I respectfully agree with that summary of the situation. On my reading of the Tribunal's decision, there is no arguable jurisdictional error. The appeal must be dismissed.
This Court is bound by the decision of the Federal Court on appeal from it. In my view, the effect of the decision of Wilcox J is that the RRT decision has been conclusively found to be a privative clause decision.
In consequence, the present judicial review application was filed out of time and the Court has no jurisdiction to entertain it any further. It makes no difference that the applicant is now seeking to agitate a ground of review that was not specifically raised previously. I will not accept the proposed amended application.
I find that the judicial review application filed on 12 September 2005 is incompetent and I dismiss it summarily.
I note that the Minister seeks additional relief in the form of an order preventing the filing of a further judicial review application in respect of the same decision, except by leave of the Court. Previously I have only made such an order where I have been persuaded that an abuse of process has occurred. However, the Migration Litigation Reform Act 2005 (Cth), which commenced application on 1 December 2005, has made significant changes to the legislative regime for the review of migration decisions. The time limits applicable under the Migration Act now apply not only to privative clause decisions but also to purported privative clause decisions. In addition, this Court no longer has jurisdiction to review primary decisions which, for present purposes, includes the decision of the delegate leading to the decision of the RRT. Having regard to the legislative changes now in place, I am persuaded that I should order that no further application by this applicant to review the decision of the RRT, made on 24 May 2000, or the decision of the delegate that preceded it, be accepted for filing in this court, except by leave of the Court. I will so order.
On the issue of costs, the application having been summarily dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,400 on an indemnity basis. Mr Zipser opposes an award of costs on an indemnity basis. I agree that in the circumstances of this matter, an indemnity costs award would not be appropriate. I note that the rules of court applicable on and from 1 December 2005 provide for an award of costs of $2,500 in a proceeding dealt with at this stage. However, where the Minister's actual costs are less than that amount it is appropriate for the Court to award costs in a reduced amount. In addition, I take into account that these proceedings were commenced well before the present court rules commenced operation.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 December 2005
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