SZFGJ v Minister for Immigration
[2005] FMCA 1285
•9 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFGJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1285 |
| MIGRATION – Refugee – privative clause decision – no jurisdiction to review the current application. |
| Migration Act 1958, ss.474, 477(1A) Federal Magistrates Court Rules 2001, rr. 13.10(b), 13.10(c), 21.02(2)(a) |
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598
SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498
SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1549
SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1746
| Applicant: | SZFGJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3652 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 August 2005 |
| Date of Last Submission: | 29 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. B. Rayment |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application in relation to the Tribunal decision of 14 January 2002 is dismissed as incompetent.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 14 January 2002 and handed down on 7 February 2002 be accepted for filing except with leave of the Court.
The applicant pay the respondent’s costs on an indemnity basis set in the amount of $3800 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3652 of 2004
| SZFGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an application filed in this Court on 16 December 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 January 2002 and handed down on
2 February 2002 to affirm the decision of a delegate of the respondent Minister made on 20 October 1997 to refuse a protection visa to the applicant.
The applicant is a citizen of Bangladesh and claimed to fear persecution in that country because of his political opinion. He claimed that he had problems in Bangladesh because of his involvement in a small political party called the “Jitiya League”, and because of his involvement in the publication of two books of poetry that were critical of the first leader of Bangladesh, Sheik Mujibar Rahman and his daughter Sheikh Hasina, who was the Awami League leader, and Prime Minister of Bangladesh from June 1996 until October 2001. The Jitiya League supported the Bangladesh National Party (BNP) and he claimed that he had no problems due to his involvement with the Jitiya League until mid 1996 when the Awami League came into power. He claimed that after taking power the Awami League began a campaign of harassing, torturing, imprisoning and killing political opponents, and fearing that he would be targeted, he came to Australia in 1996. He returned to Bangladesh in March 1997 but after an attack which left him seriously injured, left Bangladesh in April 1997.
The matter came on before me today by way of application filed by the respondent on 12 January 2005, seeking an order dismissing the application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. The respondent sought that the application should be dismissed on the grounds that:
(a)The doctrine of res judicata applies and is a complete bar to the application.
(b)The doctrine of issue estoppel applies and is a complete bar to the application.
(c)Anshun estoppel applies and there are no special circumstances to justify its non-application.
(d)Pursuant to Part 13.10(b) of the Federal Magistrates Court Rules 2001, the proceeding is frivolous or vexatious.
(e)Pursuant to Part 13.10(c) of the Federal Magistrates Court Rules 2001, the proceeding is an abuse of process of the Court.
At the hearing on 9 August 2005 I also had before me:
1)The affidavit of Bernadette Marie Rayment, a solicitor in the employ of the respondent’s solicitors, sworn on 30 December 2004 and filed on 5 January 2005.
2)The respondent’s Notice of Objection to Competency filed 30 December 2004.
3)The applicant's “argument for competency” filed on 14 February 2005.
4)The respondent’s outline of submissions filed 28 July 2005.
5)The affidavit of Jennifer Bautista, a solicitor in the employ of the respondent’s solicitors, sworn on 29 July 2005 and filed on 29 July 2005.
The applicant lists, in his application to the Court filed on 16 December 2004, four grounds of review:
“1. That the tribunal exceeded its jurisdiction in failing to accept the applicant’s 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. MIMIA;
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 I returned. By not dealing with this matter, there was a constructive failure on the part of the tribunal, an error of law and or lack of procedural fairness.”
The affidavit of Bernadette Marie Rayment sworn on 30 December 2004, with relevant annexures, shows that the Tribunal decision in question involved not just the applicant (the applicant in the originating application to the Court) but his wife and two children. This decision was the subject of an application for judicial review in the Federal Court. On 19 November 2002, Her Honour Stone J. made orders dismissing the applicants’ application. This decision was appealed to the Full Federal Court and on 11 November 2003, their Honours Spender, Hely and Bennett JJ. dismissed the application as it applied to the applicant currently before this Court, but remitted the applicant’s wife and children’s appeals back to the Tribunal. On 12 December 2003 the applicant then made an application for special leave to appeal to the High Court and on 19 November 2004 McHugh and Callinan JJ. refused the application.
In relation to the respondent’s Notice of Objection to Competency, I note that the date of the Tribunal decision in this case followed the introduction of s.474 to the Migration Act, and the judgement at first instance was made following the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. I also note two decisions of Driver FM; SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 598 and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498. Both involved circumstances similar to the issue before me in that the Tribunal decision before the Federal Magistrates Court had previously been before the Federal Court at first instance and Full Federal Court where it was found that the decision did not contain jurisdictional error and was a privitive clause decision. I both those cases, there is no doubt that the applications for review had been filed well outside the prescribed time in s.477(1A) of the Migration Act. The Court first considered the issue of whether the decision of the Tribunal was a privitive cause decision and found in both matters that the Tribunal decision, having been considered by the Federal Court and the Full Court of the Federal Court in each case, and having found that there was no jurisdictional error in respect of each decision, that this meant that the matter as to whether the decisions were privitive clause decisions had been conclusively determined. Both decisions were upheld on appeal by the Federal Court; SZCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1549 and SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1746.
I also note as Conti J. said in the appeal in SZCTT at paragraph 7 of the Court's judgment:
“It is clear that the applicant has exhausted his legal rights as established at least by the judgments of four judges of this court. The application to the Federal Magistrates Court was inferentially an abuse of process and leave to appeal on the question of competence is of the same character.”
At the hearing before me today the applicant appeared unrepresented. He was provided with an interpreter in the Bengali language but submitted that as his English was competent, and that it was preferable and comfortable for him to conduct the hearing in English and to consult the interpreter if required. Ms. Rayment appeared for the respondent Minister and relied primarily on her written submissions but first pressed the issue of jurisdiction, having agreed that this is the threshold question. Prima facie, the question of jurisdiction in this matter appears to be fatal to the application currently before the Court. As already described the applicant has already been to the Federal Court and unsuccessfully appealed to the Full Federal Court (and incidentally the High Court). The applicant filed, on 14 February 2005, a submission described as ‘Applicant’s Argument for Competency’. He clarified his position today in relation to this matter, and I discerned that he was essentially asserting that the orders made in the Full Federal Court that related to the other applicants (his wife and children) before that Court, had the effect of quashing the Tribunal’s decision as it related to him. I invited Ms. Rayment to make submissions in relation to whether, given the Full Federal Court had made a favourable determination for the current applicant’s wife and children that resulted in remittal back to the Refugee Review Tribunal, the Tribunal decision could be seen as divisible, or in fact that the jurisdictional error in relation to the applicant’s wife and children had the effect of infecting the decision as it related to the current applicant before the Court. Ms. Rayment submitted that the Tribunal decision was capable of division and could be apportioned as to each of the applicants. Further, she submitted that the Federal Court made their orders accordingly, in that the Court orders clearly distinguished between the applicant and his wife and children, and that this approach was approved by the High Court as it found no error in the way the Full Federal Court made its decision. I accept Ms. Rayment’s submission that as such it is possible to distinguish two applicants who have put forward separate claims and clearly recognise that the Full Federal Court decision in relation to the applicant before me, as “endorsed” by the High Court, is binding on me. For this reason, given the previous litigation before the Federal Court and the clear determination in relation to the applicant currently before me, the Tribunal’s decision which is the subject of the applicant’s application before this Court now, to the extent that it relates to this applicant, has already been found to be a privative clause decision and, as the application has been filed in this Court well outside the prescribed time in s.477(1A) of the Act, I have no jurisdiction to review the decision.
Having determined that this Court lacks jurisdiction, I have no need and indeed have no power, to consider whether the matter should, in the alternative, be dismissed on the basis of res judicata, issue estoppel, Anshun estoppel or because the claim is frivolous or vexatious (rule 13.10(b)) nor any need to consider whether inferentially it is an abuse of the process of the Court (rule 13.10(c)). This Court lacks jurisdiction and the application is dismissed on that basis.
Finally, Ms. Rayment submitted that in light of the repeated litigation in relation to the Tribunal decision, which is yet again before the Courts, that it would be appropriate to make an order preventing the applicant from filing further applications in this Court in relation to the Tribunal decision of 14 February 2002 and, that in such circumstances, costs should be awarded on an indemnity basis. I accept this submission and note that it is appropriate to make these orders in circumstances where the Full Federal Court clearly separated out this applicant from his wife and children and the applicant sought to go to the High Court and was unsuccessful. Given this Court is bound by the findings of the Full Federal Court, it was clearly futile to initiate proceedings subsequently in this Court. On this basis I accept Ms. Rayment’s submission and make these orders accordingly.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 7 September 2005