SZDPL v Minister for Immigration
[2004] FMCA 968
•13 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPL v MINISTER FOR IMMIGRATION | [2004] FMCA 968 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – objection to competency – RRT decision subject of earlier judicial review proceedings – RRT decision found to be free of legal error – application summarily dismissed as incompetent. |
Migration Act 1958 (Cth), ss.474, 477
| Applicant: | SZDPL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1501 of 2004 |
| Delivered on: | 13 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 December 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms B Rayment Sparke Helmore |
INTERLOCUTORY ORDERS
The judicial review application filed on 20 May 2004 is dismissed summarily as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application for judicial review on an indemnity basis, fixed in the sum of $3,600.
No further application by this applicant to review the decision of the Refugee Review Tribunal handed down on 27 March 2002 is to be accepted for filing in this Court, except by leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1501 of 2004
| SZDPL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion by the respondent Minister, notice of which was given on 25 June 2004. In that motion the Minister seeks the summary dismissal of a judicial review application filed on 20 May 2004. That application sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The Minister does not press grounds 1(a), 1(b), 1(c) in the motion. Ground 1(d) asserting that the judicial review proceedings are vexatious and ground 1(e), asserting that the proceedings are an abuse of process, are pressed. The Minister also relies upon a notice of objection to competency filed on 16 November 2004. That objection relies upon ss.474 and 477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”).
The motion and objection are supported by an affidavit made on 17 June 2004 by Bernadette Rayment. I received that affidavit as evidence for the purposes of today's hearing. Ms Rayment also relies upon her own written submissions filed in my chambers 6 December 2004. She also made short oral submissions. Annexed to Ms Rayment's written submissions is a chronology. The chronology provides a useful background and I adopt it for the purposes of this judgment:
BACKGROUND
Applicant born in Bangladesh 21 December 1966
Applicant arrived in Australia 15 September 1999
DIMIA
Application for protection visa lodged 25 October 1999
Delegate’s decision 26 November 1999
RRT
Application for review lodged 20 December 1999
RRT hearing 5 March 2002
RRT decision handed down 27 March 2002
FEDERAL COURT – N340 of 2002
Application for judicial review lodged 23 April 2002
Emmett J dismissed application with costs 19 July 2002
FULL COURT OF THE FEDERAL COURT – N821 of 2002
Notice of appeal filed 8 August 2002
Black CJ, Madgwick and Allsop JJ ordered that the
notice of appeal be treated as an application for
leave to appeal and dismissed that application with
indemnity costs. 13 December 2002
HIGH COURT – S515 of 2003
Draft order nisi filed 25 September 2003
Gummow J remitted the matter to the Federal Court 28 November 2003
FEDERAL COURT – N2533 of 2003
Emmett J refused the order nisi 9 February 2004
FEDERAL MAGISTRATES COURT – SZ1501 of 2004Application for judicial review lodged 20 May 2004
Affidavit of Bernadette Marie Rayment filed 18 June 2004
Notice of Motion filed 25 June 2004
Directions hearing 26 August 2004
Notice of objection to competency filed 16 November 2004
I also adopt paragraphs 4 through to 13 of Ms Rayment's written submissions by way of background:
The applicant arrived in Australia on 15 September 1999.[1] On 25 October 1999, he lodged an application for a protection visa.[2] On 26 November 1999, a delegate of the respondent refused the application[3] and on 20 December 1999, the applicant applied to the RRT for review of that decision.[4]
[1] Exhibit BZR1, p 21
[2] Exhibit BZR1, pp 8 – 30.
[3] Exhibit BZR1, pp 36 - 42
[4] Exhibit BZR1, pp 43 - 46
On 8 February 2002, the RRT sent the applicant a letter advising him that it was unable to make a favourable decision on the material before it and inviting him to attend a hearing of the RRT to give oral evidence. On 18 February 2002, the applicant advised that RRT in writing that he would attend the scheduled hearing.[5] However, on 5 March 2002 (the day of the scheduled hearing) the applicant’s adviser informed the RRT that the applicant did not wish to attend the hearing.[6]
[5] Exhibit BZR1, p 49
[6] Exhibit BZR1, p 63.7
On 5 March 2002, the RRT made a decision affirming the decision of the delegate to refuse to grant the applicant a protection visa.[7]
Applicant’s claims and RRT’s findings
The applicant, a citizen of Bangladesh, claimed to fear harm from members of the Awami League (“AL”) in Bangladesh as he was a supporter of a prominent politician in the Bangladesh National Party (“the BNP”). He claimed that he was attacked on several occasions by members of the AL, that false charges had been filed against him and that the authorities would not protect him from harm.[8] In addition, he claimed to fear harm from the “anti liberationist” faction of the BNP because he was a member of the “pro-independence” faction of the BNP.[9]
The RRT did not accept that the applicant would suffer serious harm on his return to Bangladesh as the BNP had won government in the national elections in 2001.[10] It did not accept that he faced a real chance of harm from a rival faction within the BNP as the politician he supported occupied a significant position in cabinet, indicating that any such factional rivalry was not significant.[11]
Previous proceedings
On 23 April 2002, the applicant filed an application for judicial review in the Federal Court of Australia in proceedings number N340 of 2002.[12] On 19 July 2002, the applicant failed to attend the hearing in these proceedings and the Honourable Justice Emmett dismissed the application with costs
On 8 August 2002, the applicant sought to appeal from the judgment of the Honourable Justice Emmett by filing a notice of appeal in proceedings number N821 of 2002.[13]
On 13 December 2002, the applicant failed to appear at the scheduled hearing of this “appeal”. On this date, the Honourable Chief Justice Black and Justices Madgwick and Allsop (“the Full Court of the Federal Court”) made orders that the purported notice of appeal be treated as an application for leave to appeal and that the application be dismissed with costs awarded on an indemnity basis.[14]
On 25 September 2003, the applicant filed a draft order nisi and affidavit in the Sydney Office of the Registry of the High Court of Australia.[15] On 28 November 2003, orders were made by consent remitting this draft order nisi to the Federal Court of Australia.[16]
On 9 February 2004, the applicant failed to appear at the scheduled hearing of his application for an order nisi and the Honourable Justice Emmett ordered that the application for an order nisi be refused. The Honourable Justice Emmett also ordered that no further application for review of the RRT’s decision of 5 March 2002 be accepted for filing in the Federal Court without leave of the Court.[17]
[7] Exhibit BZR1, PP 60 - 68
[8] Exhibit BZR1, p 31. 5 – 32.1 and 64.7 – 65.7
[9] Exhibit BZR1, p 66.4
[10] Exhibit BZR1, p 67.3
[11] Exhibit BZR1, p 67.7
[12] Exhibit BZR1, p 1
[13] Exhibit BZR1, pp 84 - 86
[14] Affidavit, Annexure A, p 4 - 8
[15] Affidavit, Annexure B, pp 9 -13
[16] Affidavit, Annexure C, pp 14 - 15
[17] Affidavit, Annexure D, pp 16 - 19
The available material establishes that the applicant has commenced several earlier proceedings in the Federal Court which have not been seriously pressed. The present application for judicial review is formulaic in content. It appears to have been prepared with the assistance of a migration agent or some other person having an involvement in previous proceedings before the Court.
While the application asserts numerous grounds of jurisdictional error, none of them are particularised. In the absence of particulars, the application for judicial review has no substance. The litigation history both before the RRT and in the various legal proceedings challenging the decision of the RRT clearly points to an abuse of process. In the circumstances, were it not for the objection to competency, I would have been minded to uphold the Minister's motion. However, because the objection to competency raises a jurisdictional issue, I should consider that first.
Ms Rayment deals with this issue in paragraphs 14 to 17 of her written submissions. I agree with and adopt those paragraphs for the purposes of this judgment:
On 19 July 2002, the Honourable Justice Emmett held, after reviewing the RRT’s decision, that:
There is nothing in the material that I have seen to indicate that there is any substance in the applicant’s application to this Court. [18]
[18] Exhibit BZR1, P 81.7
On 13 December 2002, the Honourable Chief Justice Black and Justices Madgwick and Allsop held, after reviewing this RRT decision, that:
Like the learned primary judge, we have read the reasons of the RRT and discern no remediable legal error in its findings and reasons. [19]
On 9 February 2004, the Honourable Justice Emmett held, after reviewing the RRT’s decision, that the application for an order nisi ought to be refused as:
[t]he affidavit filed in support of the application discloses no basis upon which any relief should be granted. [20]
Accordingly, numerous judges of the Federal Court of Australia have held on several occasions that the RRT decision in question is absent any legal error. In these circumstances, the decision is to be properly regarded as a “privative clause decision”. Accordingly, the time limits in subsection 477(1A) of the Act apply and the Court does not have jurisdiction to review the RRT’s decision. For this reason, the respondent’s notice of objection to competency filed on 16 November 2004 ought to be upheld.
[19] Affidavit, Annexure A, p 7.3
[20] Affidavit, Annexure D, p 18.7
It is clear to me that in the first proceedings in the Federal Court His Honour, Emmett J, could find no legal error in the decision of the RRT. Likewise, the Full Federal Court found no legal error. The third attempt by the applicant to obtain judicial review also failed on the basis that there was no basis upon which any relief could be granted.
The earlier decisions by the Federal Court established, beyond argument, that the decision of the RRT is a privative clause decision. It follows that the Court has no jurisdiction to entertain the present application for judicial review any further. The applicant was clearly aware of the decision of the RRT at the time he commenced his first proceedings in the Federal Court on 23 April 2002.
The present application for judicial review has been commenced several years after the decision of the RRT. It has obviously not been commenced within the time prescribed by s.477(1A) of the Migration Act. The Court has no jurisdiction to extend that time limit.
Accordingly, I will dismiss the judicial review application filed on 20 May 2004 summarily as incompetent.
On the question of costs, Ms Rayment seeks an order for costs on an indemnity basis fixed in the sum of $3,600. The applicant indicated that he would prefer a lesser costs order. An indemnity costs order would be properly called for if the Minister's motion had been upheld. As I have indicated earlier in these reasons, I would have been minded to grant the Minister's motion but for the jurisdictional issue.
The Minister has been put to substantial expense in four proceedings over the decision of the RRT. The present judicial review application contains numerous unsupported assertions, including an assertion of bad faith that should not have been made. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application for judicial review on an indemnity basis, fixed in the sum of $3,600.
Given the litigation history of this applicant, it is also appropriate that I further order that no further application by this applicant to review the decision of the RRT handed down on 27 March 2002 be accepted for filing in this Court, except by leave of the Court. I note that a like order has already been made by the Federal Court.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 December 2004
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