SZENF v Minister for Immigration
[2004] FMCA 783
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENF v MINISTER FOR IMMIGRATION | [2004] FMCA 783 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no appearance – dismissal of application. |
Migration Act 1958 (Cth), ss.477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
R v Balfour; Ex parte Parkes Rural Board Distributions Pty Ltd (1987) 76 ALR 256
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Walton v Gardiner (1993) 177 CLR 379
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 225
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404
NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 603
NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 88
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677
| Applicants: | SZENF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2994of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
No appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed pursuant to Part 13, Division 13.10 of the Federal Magistrates Court Rules.
The applicant pay the respondent’s costs fixed in the sum of $2,500.
No further application by the applicants to review the decision of the Refugee Review Tribunal made on 28 August 2002 be accepted for filing except with leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2994 of 2004
| SZENF |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Objection to Competency filed on 14 October 2004, the respondent moves the Court for orders that these proceedings be summarily dismissed on the grounds that they are an abuse of process. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 October 2004. The respondent tendered and applied on an affidavit of Benjamin Alexander Cramer sworn on 27 October 2004 (“the affidavit of Mr Cramer”) to be admitted to evidence. Annexed to the affidavit of Mr Cramer was copy of Application Book S401 of 2003 (“AB”).
Background
On 29 August 2002 the Refugee Review Tribunal (“the Tribunal”) handed down a decision affirming the decision of the respondent to refuse to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia on 5 March 2000 and sought a protection visa on the ground that he had a well-founded fear of persecution on the ground of political opinion in that he was a member of the Jatiya Party and that false charges had been laid against him by members of the rival Awami League.
On 24 June 2002 the Tribunal wrote to the applicant informing him that it was unable to make a favourable decision on the papers and inviting him to attend a hearing on 6 August 2002 (AB 6.23). The applicant accepted the invitation (AB 6.27). However, he did not attend the hearing on 6 August 2002 or make any contact with the Tribunal (AB 6.32). In those circumstances, the Tribunal was entitled under s.426A of the Migration Act 1958 (“the Act”) to make a decision without taking any further action to allow the application to appear.
The Tribunal stated that if the applicant had attended the hearing, it would have wished to explore the aspects of his evidence, including the recent change of government in Bangladesh and the veracity of documents presented by the applicant (AB 7.7 ff). In the absence of the Tribunal’s ability to explore these matters with the applicant, it was not satisfied that the applicant’s stated fears were well founded. The Tribunal concluded that the applicant did not leave Bangladesh in 1997 because he feared persecution for reason of political opinion or that he now had a well-founded fear of persecution if he returned (AB 7.20-22).
This decision of the Tribunal has been the subject of previous judicial review proceedings instituted by the applicant. On 14 March 2003, Driver FM dismissed the applicant’s application for judicial review of the Tribunal’s decision: NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 88 (AB 16 ff). The applicant appeared in person in the application before Driver FM. His Honour held that the proceedings before the Tribunal were fair and that no jurisdictional error was apparent in the decision and reasons of the Tribunal. His Honour concluded that the Tribunal decision was protected by s.474 of the Act.
An appeal to the Federal Court from Driver FM’s judgment was dismissed on 13 June 2003: NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 603 (AB 26 ff). Wilcox J, exercising the Court’s appellate jurisdiction, was unable to discern any error in the Tribunal’s reasons and noted that the applicant had not advanced any contention of error of law or failure to follow proper procedures. His Honour did not think there was any basis for interfering with the Federal Magistrate’s decision.
The applicant’s application for special leave to appeal to the High Court from the Federal Court’s judgment was dismissed on 6 August 2004. On that date, the applicant failed to appear in Court when the matter was called. The Court had received medical certificates and an application for adjournment of the hearing. Gummow J noted that this was not the first occasion where there had been a failure to appear by the applicant. His Honour also noted that the Court would grant the adjournment if it thought there was some substance in the grounds put forward but that it appeared that there were no prospects of success. His Honour also held that the applicant’s apparent reliance on Muin v Refugee Review Tribunal lacked the evidentiary basis required to make out such an argument. Accordingly, the application for adjournment was refused and the application for special leave itself was also refused, with costs.
The present application
The present application was filed in the Court on 5 October 2004. It contains four ground, none of which are particularised. It contains loosely formulated allegations of breach of procedures, denial of natural justice and jurisdictional error. The applicant’s grounds are as stated:
1.That the Tribunal exceeded its jurisdiction, in failing to accord the applicants procedural fairness, as required under section 424A(1) and section 418(3) of the Migration Act 1958.
2.That a breach of the rules of natural justice occurred in connection with the making of the decision.
3.That the Tribunal is bound to accord procedural fairness in reaching its decisions, and a failure to accord procedural fairness will lead to jurisdictional error, which is not protected from review by the privative clause (S157/2002 v Commonwealth of Australia (2003) ALR 24, Re Minister for Immigration & Multicultural Affairs; Ex parte Miab [2001] 206 CLR 1).
4.Refugee Review Tribunal fell into jurisdictional error in assessing whether or not the state was able to offer adequate protection to the applicant if he returned. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, an error of law and a lack of procedural fairness.
Submissions
Mr Cramer appeared for the respondent, filed written submissions and made oral submissions. It was submitted that the present application was lodged out of time and as such the effect of the previous judicial review proceedings was that the Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision as that term is defined in s.474 of the Act. As the present application was lodged outside of the time limited permitted by s.477(1A) of the Act, it was therefore incompetent: see SZBML v Minister for Immigration & Multicultural & Indigenous Affairs, SZBML v Minister for Immigration & Multicultural & Indigenous Affairs).
It was submitted that in respect of res judicata and issue estoppel, in light of the previous judicial review proceedings, the present application is barred by the doctrines of res judicata and issue estoppel (Somanader v Minister for Immigration & Multicultural Affairs).
It was further submitted that this application should be summarily dismissed on the principles of Anshun estoppel (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242) or because it was otherwise an abuse of process (Walton v Gardiner (1993) 177 CLR 378). It was submitted that the applicant raised no issue here that that has not or could not have been raised in the previous proceedings for review of the Tribunal’s decision. The previous judicial review proceedings, including that the High Court has already found there is no error in the Tribunal’s decision, and that the applicant has not particularised any error he claims that the Tribunal made, and none is apparent, the Court should conclude that the present application is vexatious and is an abuse of the Court’s process.
Conclusion
I accept the submissions made by the respondent in this Motion and find that the application should be dismissed summarily pursuant to Order 13.10 of the Federal Magistrates Court Rules, with costs.
I certify that the thirteen (13) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 November 2004
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