SZDHD v Minister for Immigration - [2004] FMCA 749

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDHD v MINISTER FOR IMMIGRATION

[2004] FMCA 749

MIGRATION – Review of Refugee Review Tribunal decision – objection to competency – applicant repeatedly challenging the same RRT decision – none of the proceedings clearly pointing to any jurisdictional error – objection to competency upheld.

Federal Court Rules

Federal Magistrates Court Rules
Migration Act 1958 (Cth), s.477

Applicant:

SZDHD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1075 of 2004

Delivered on:

1 November 2004

Delivered at:

Sydney

Hearing date:

1 November 2004

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr C Jayawardena

Solicitors for the Respondent:

Mr R White
Sparke Helmore

INTERLOCUTORY ORDERS

The Court directs that the applicant’s name is not to appear on the transcript of proceedings.
The objection to competency be upheld.
The application for judicial review filed on 13 April 2004 be dismissed summarily as being incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1075 of 2004

SZDHD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion of which notice was given on 24 June 2004 seeking the summary dismissal of an application for judicial review filed on 13 April 2004. The judicial review application is in relation to a decision of the Refugee Review Tribunal (“the RRT”) made on 23 October 2002. The Minister also proceeds on the basis of an objection to competency filed on 25 June 2004. I elected not to apply the time limit on such objections contained in Order 54B of the Federal Court Rules. In support of the motion and objection to competency, the Minister relies upon an affidavit by Michael McCrudden filed on 24 June 2004. Mr White also tendered a document that was inadvertently not included with the documents annexed to that affidavit (exhibit R1). I also gave leave for the motion to be amended orally to include as a ground that the application for judicial review is frivolous or vexatious.
The motion and objection are opposed. The applicant relies upon his application for judicial review as well as an affidavit by himself filed on 28 October 2004. The applicant gave additional oral evidence and was cross-examined on that affidavit.
I elected to receive the affidavit with very limited weight on the basis that the statements in it are largely in the nature of submissions and to the extent that factual matters are alleged, they could not be given significant weight in the absence of some corroborating evidence such as a transcript of proceedings before RRT. Both Mr White and Mr Jayawardena prepared written submissions in relation to the motion and objection to competency. Mr White also filed by leave a chronology which usefully sets out the procedural history of various proceedings instituted by or on behalf of the applicant. I adopt that chronology for the purposes of this judgment:

BACKGROUND
Applicant born in Philippines. Citizen of India
15 September 2001	Applicant arrived in Australia
DIMIA
29 October 2001	Applicant lodged application for a protection visa
31 January 2002	Delegate of respondent refused application for a protection visa
RRT
25 February 2002	Applicant applied to RRT for review of delegate’s decision
23 October 2002	Delegate’s decision affirmed by RRT
Federal Court	N1287 of 2004
4 December 2002	Application for judicial review lodged. Matter transferred to Federal Magistrates Court
Federal Magistrates Court	SZ1384 of 2002
21 May 2003	Notice of discontinuance filed
Federal Court	S518 of 2003
22 May 2003	Application for judicial review lodged
12 November 2003	Respondent’s notice of objection to competency filed
14 November 2003	Orders of Lander J transferring matter to Federal Magistrates Court. Hearing listed at 10:15am on 16 March 2004
11 March 2004	Notice of discontinuance filed
15 March 2004	Orders of Raphael FM, by consent, granting leave to the applicant to discontinue with the applicant to pay the respondent’s costs fixed at $2,750.00
Federal Magistrates Court	SZ1075 of 2004
13 April 2004	Application for judicial review lodged
24 June 2004	Respondent’s notice of motion filed
25 June 2004	Respondent’s notice of objection to competency filed
13 July 2004	Directions hearing
1 November 2004	Hearing of the respondent’s notice of motion

I also adopt by way of background, paragraphs 5-10 of Mr White's written submissions:
The applicant claimed that he was a Hindu, an active member of a Hindu student political group; that his activism brought him into conflict with Sikhs and that Sikhs had burned down his shop.[1] At the hearing before the RRT, the applicant claimed to be a Sikh, not a Hindu; he downgraded the role and enthusiasm he had in the group and he was unsure about the persons responsible for the fire in his shop.[2]
The RRT found the applicant’s claims included ‘strong elements of fabrication and exaggeration’.[3] The RRT noted that the applicant had six opportunities to present his case and had been put on notice that his application was vague and lacked credibility. As an alternative basis for rejecting the applicant’s claims for protection, the RRT found that it was reasonable for the applicant to relocate.[4] The RRT’s findings were open to it for the reasons it gave and disclose no error.
Previous proceedings
On 4 December 2002, the applicant filed an application for judicial review in the Federal Court of Australia, New South Wales District Registry. The proceedings were allocated proceedings number N1287 of 2002 and sought review of the same RRT decision that is the subject of the current proceedings. The matter was transferred to the Federal Magistrates Court of Australia and given the proceedings number SZ1384 of 2002. The hearing was listed on 23 May 2003, but two days before his scheduled hearing in the Federal Magistrates Court of Australia (ie, on 21 May 2003), the applicant filed a notice of discontinuance.
On 22 May 2003, the applicant filed an application for judicial review in the Federal Court of Australia (proceedings number S518 of 2003) South Australia District Registry that sought to review the RRT decision that is the subject of these proceedings.
On 22 September 2003, Lander J made orders regarding the conduct of the matter. On 12 November 2003, the solicitors for the respondent filed a notice of objection to competency in the Federal Court of Australia. A directions hearing was held on 14 November 2003 before Lander J who ordered that the matter be transferred to the Federal Magistrates Court.
The matter was listed for hearing on 16 March 2004 at 10:15am. On 11 March 2004, the applicant filed a notice of discontinuance in the Federal Magistrates Court of Australia at Adelaide. On 15 March 2004, Federal Magistrate Raphael ordered by consent that leave be given to the applicant to discontinue and that the applicant pay the respondent’s costs in the sum of $2,750.00.
[1] Affidavit of Michael McCrudden sworn on 23 June 2004 (“Affidavit”), exhibit MDM001, p. 70
[2] Affidavit, exhibit MDM001, p.73.4
[3] Affidavit, exhibit MDM001, p. 78.3
[4] Affidavit, exhibit MDM001, p. 79.6
In his evidence, the applicant told me that he initially instituted proceedings in the Federal Court in Sydney with the assistance of a migration agent but discontinued those proceedings following advice either by his agent or Mr Mark Clisby, a South Australian practitioner, or both, that it would be beneficial to commence proceedings in the Federal Court in South Australia.
Subsequently, the applicant agreed to instruct Mr Clisby to discontinue those proceedings in the South Australian registry of this Court following a transfer from the Federal Court. These are the third proceedings in this Court in relation to the same RRT decision. The applicant in his evidence denied any purpose in the various proceedings instituted by him or on his behalf other than to seek to have the decision of the RRT judicially reviewed. He told me that he acted at all times on the basis of the advice given to him. He felt disadvantaged in the initial proceedings in that he did not have a legal practitioner, although he was assisted by an immigration agent. In the second proceedings he felt himself bound to follow the advice given to him by Mr Clisby.
The applicant seeks this third opportunity in this Court to have the decision of the RRT reviewed. The applicant also told me that he has paid some $8,700 in respect of the various proceedings instituted by him including the administrative proceedings in the RRT. The funds include moneys paid to his legal advisers and also in respect of costs awarded against him. The payments were verified by documentary evidence tendered by Mr Jayawardena on behalf of the applicant. The applicant in response to a final question from Mr Jayawardena said that in the event that he is unsuccessful in his legal proceedings he is prepared to return to his home country.
On the basis of the evidence before me, while the multiplicity of proceedings might lead to suspicion that the applicant's purpose was simply to prolong the litigation process so as to prolong his stay in Australia, I accept from the applicant's evidence that his dominant purpose was to test properly the validity of the RRT decision. It follows that I am not satisfied that the present proceeding is an abuse of process and I would not dismiss the application for judicial review on that basis. Neither am I satisfied on the basis of the available evidence that the application for judicial review is frivolous or vexatious.
What I am concerned about is that after legal proceedings running over two years, and three sets of proceedings, a coherent challenge to the decision of the RRT is not apparent. The original application for judicial review failed to properly engage the jurisdiction of the Court. That application simply sought judicial review without providing proper grounds. The second application for judicial review advanced seven grounds which run the gamut of available grounds of judicial review. However, no particulars were provided in that application. The third application for judicial review that I have before me asserts error of law but only points to the decision of the RRT, which was an adverse decision based upon a credibility finding.
On its face, the application for judicial review before the Court does not more than express dissatisfaction with the decision of the RRT. The applicant confirmed in his oral evidence that he is dissatisfied with the decision of the RRT. However, he could not, in his own words, express any coherent opposition on any legal ground. He stated that his affidavit filed on 28 October 2004 was prepared with the assistance of his legal adviser. That affidavit asserts a want of procedural fairness but in substance is a further expression of dissatisfaction with the strong adverse credibility findings made by the presiding member of the RRT.
On the material before me, there is nothing that causes me to have any serious doubt that the decision of the RRT is a privative clause decision. If there were any jurisdictional error, that should have been apparent in at least one of the three sets of judicial review proceedings that have been instituted. Asserted jurisdictional error in the present proceeding remains elusive. I conclude that there is none. The consequence is that I do not have jurisdiction to entertain the present application further because of the operation of s.477(1A) of the Migration Act 1958 (Cth). That is because the present application for judicial review was obviously filed well outside the time prescribed in the section for such applications. I have no jurisdiction to extend that time period.
I will therefore uphold the objection to competency and dismiss summarily the application for judicial review filed on 13 April 2004 as incompetent.
On the question of costs, Mr White seeks an order for costs on a party/party basis fixed in the sum of $3,000. That outcome would be consistent with the outcome if the event based costs scale in the Federal Magistrates Court Rules 2001 (Cth) had been applied. I am satisfied that costs of that order have been reasonably and properly incurred on behalf of the Minister on a party/party basis.
I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 November 2004