SZEVR v Minister for Immigration

[2004] FMCA 1093

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVR & ORS v MINISTER FOR IMMIGRATION [2004] FMCA 1093

MIGRATION – Refugee Review Tribunal decision – citizens of Bangladesh – – no jurisdictional error – privative clause decision – application out of time – application incompetent – interlocutory application upheld – application dismissed – no further application by the applicants to review the decision without leave.

Migration Act 1958 (Cth)

NAGW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 272
NAGW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 173
NAGW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCATrans 226
SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 445
SZDKV vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 849
SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1284

Applicant: SZEVR & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2102 of 2004

Delivered on: 8 December 2004

Delivered at: Sydney

Hearing date: 8 December 2004

Judgment of: Mowbray FM

REPRESENTATION

Advocate for the Applicants: In person

Counsel for the Respondent: Ms Raymond

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The objection to competency filed on 20 July 2004 be upheld.

2. The application be dismissed.

3. The first and fourth applicants pay the costs of the respondent fixed in the sum of $2,800.

4. No further application by the applicants to review the decision of the Refugee Review Tribunal handed down on 5 December 2002 be accepted for filing except with the leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2102 of 2004

SZEVR & ORS

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore decision which has been revised and edited from the transcript.  It relates to decision handed down by the Refugee Review Tribunal (the Tribunal) on 5 December 2002.  I have before me a notice of motion seeking summary dismissal of judicial review applications filed by the applicants in this Court on 8 July 2004, which seek review of the Tribunal’s decision. 

2. Although the notice of motion relies on a number of grounds related to estoppel and abuse of process, Ms Raymond for the respondent has pressed the notice of objection to competency filed on 20 July 2004 on the grounds that the application was filed in this Court outside the 28 day time limit prescribed in s 477(1A) of the Migration Act 1958 (Cth) (the Act).

3. The applicants are citizens of Bangladesh.  The adult applicants and all of the children except one who was born in Australia arrived in Australia on 9 July 2000. On 3 August 2000 they lodged their applications for protection visas.  On 13 September 2000 a delegate of the Minister refused to grant protection visas.  The applicants sought review of this decision in the Tribunal on 3 October 2000.  A hearing was held on 14 October 2002 and the decision of the Tribunal affirming that of the delegate was handed down on 5 December 2002.

4. The applicants have been involved in a series of actions in the courts in relation to the Tribunal’s decision.  This is set out as a chronology in an annexure to the respondent’s submissions filed on 17 November 2004:

   BACKGROUND

   Applicant born in Bangladesh                       14 March 1959

   Applicant arrived in Australia                     9 July 2000

   DIMIA

   Application for protection visa lodged      3 August 2000

   Delegate’s decision   13 September 2000

   RRT

   Application for review lodged   3 October 2000

   RRT hearing   14 October 2002

   RRT decision handed down   5 December 2002

   FEDERAL COURT – N1422 of 2002

   Application for judicial review filed           24 December 2002

   Justice Wilcox dismissed the application with costs

   25 March2003

   FULL FEDERAL COURT– 467 of 2003

   Notice of appeal filed   14 April 2003

   Black CJ, Heerey and Finn JJ dismissed appeal with costs

   12 August 2003

   HIGH COURT – S485 of 2003

   Application for special leave to appeal lodged

   4 September 2003

   Applicant’s summary of argument and draft notice of appeal filed

   10 October 2003

   Respondent’s summary of argument filed     24 October 2003

   Applicant’s summary of argument filed         4 June 2004

   Kirby and Callinan JJ refused application for special leave

   6 July 2004

   FEDERAL MAGISTRATES COURT – SZ2102 of 2004

   Application for judicial review filed               8 July 2004

5. In the previous proceedings, as has been noted, Wilcox J in the Federal Court ([2003] FCA 272) dismissed at first instance the application on 25 March 2003. In his reasons he said:

   I also take into account my own careful perusal of the Tribunal’s decision. In my opinion, it exhibits no reviewable error. As I say, I fully appreciate that the applicant feels the Tribunal has made a wrong decision about the facts. I also understand that he wishes to remain, with his family, in Australia. But these are not matters which I am entitled to take into account. As there is no jurisdictional error, I have no option other than to dismiss the application.

6. In their recorded reasons the Full Court on 12 August 2003 NAGW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 173 said:

   We have read the reasons of the learned primary judge. His Honour considered that nothing had been put to the Court that founded an argument that there had been jurisdictional error on the part of the Tribunal. His Honour concluded that, as there was no jurisdictional error, he had no option but to dismiss the application. There is nothing before us to cast any doubt upon the correctness of his Honour’s reasons and the appeal must be dismissed.

7. I note that Kirby and Callinan JJ dismissed an application for special leave to appeal to the High Court on 18 June 2004, not 6 July as stated in the chronology (see NAGW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCATrans 226).

8. The application filed in this Court on 8 July 2004 sets out five grounds plus an additional item which says, “I will provide more details later”.

9. The alleged grounds are not particularised in any way. One of them relates to good faith but no particulars of the allegation are provided, apart from some suggestion of failure to accord natural justice. There does not appear to be any accepted or relevant grounds for review included in the application.  As I say even the natural justice grounds are not particularised in any way.

10. The question before this Court at this stage is whether I have jurisdiction to consider the matter further.  In SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 445 Hill J said that the Court should deal with the jurisdictional issue of whether the Tribunal decision is a privative clause decision in advance of anything else.

11. I have referred to the decisions of Wilcox J of the Federal Court, the Full Court of the Federal Court and the High Court in dismissing the special leave application.  The decision of Wilcox J upheld in the Full Court makes clear that the Tribunal findings were without any jurisdictional error.  I am clearly bound by the decision of the Full Court. 

12. In my view there is nothing in the application that is made to this Court which in any way affects the determination of the Federal Court that the Tribunal’s decision was without jurisdictional error.  It is therefore a privative clause decision. 

13. As a privative clause decision, because there is no power in the Court to extend the time for filing an application, the application must be filed within 28 days.  In this case the Tribunal decision was handed down on 5 December 2002. The application to this Court having been filed on 8 July 2004 is clearly out of time. It is therefore not competent for this Court to deal with that application as it has no jurisdiction.

14. Ms Raymond has also sought an order that no further application by the applicants to review the decision of the Tribunal be accepted for filing except with leave of the Court.  She referred me to the decision of Driver FM in SZDKV vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 849 where an order along those lines was made. She also referred me to the decision of Jacobson J in SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1284 but I note in this latter case Jacobson J left open the question of whether the Federal Magistrates Court had jurisdiction or the power to make such an order.

15. I have had regard to the procedural history in this matter, the length of time since the Tribunal decision was made and the finding in the previous proceedings that the claims lack substance.  In my view the present application suffers from similar defects to those in the earlier applications in the Federal Court.  I propose therefore to make the order sought, that no further application be filed by these applicants without the leave of the Court.

16. The applicant opposed making such an order saying that he wished to get further advice on this particular issue. In my view, particularly as the current application contains, amongst other grounds, one relating to bad faith which is not particularised in any way, it is appropriate that before any future applications the applicant be called upon to justify the grounds and the making an application for review of the same Tribunal decision.

17. The final issue related to costs.  Ms Raymond sought indemnity costs which she said amounted to $3,500.  The first applicant opposed costs along those lines saying that he is the only member of the family who is employed.  The respondent also sought costs against the three adult parties to these proceedings being the first, fourth and fifth applicants.  In the circumstances I do not propose to order costs against the fifth applicant who is an adult child studying at university but I do propose to make an order for costs against the first and fourth applicants.  Having not considered the other grounds which are raised in the notice of motion such as abuse of process and such like, I do not consider it appropriate to make an indemnity costs order.

18. In the circumstances I propose to make an order against the first and fourth applicants in the sum of $2,800.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:  Kelisiana Thynne

Date:  10 March 2005