SZFYI v Minister for Immigration
[2005] FMCA 1186
•22 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1186 |
| MIGRATION – Review of Refugee Review Tribunal decision – judicial review application incompetent as not made within time. |
| Migration Act 1958 (Cth), s.477 |
| NADD v Minister for Immigration [2003] FMCA 203 NADD v Minister for Immigration [2003] FCA 1438 SAAP v Minister for Immigration (2005) 215 ALR 162 |
| Applicant: | SZFYI |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG725 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 22 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr I Muthalib Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The judicial review application is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG725 of 2005
| SZFYI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an objection to competency of which notice was given on 17 August 2005. By that notice the Minister objects to the competency of an application for judicial review filed on 22 March 2005. The judicial review application was amended on 29 April 2005. In his judicial review application, the applicant seeks review of a decision of the Refugee Review Tribunal (“the RRT”) made on 11 September 2002 and handed down on 2 October 2002. The Minister objects to the competency of the judicial review application on the basis that it was not filed within the 28 days prescribed by s.477(1A) of the Migration Act 1958 (Cth) .
In support of the objection to competency, the Minister relies upon the affidavit of Susan Goodman made on 13 May 2005. In that affidavit Ms Goodman details the procedural history of the matter. The relevant background is adequately summarised in written submissions prepared on behalf of the Minister filed on 19 August 2005. I adopt for the purposes of this judgment paragraphs 4-17 of those written submissions:
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 27 August 2001. He made a protection visa application on 25 September 2001. This application was refused by a delegate of the Minister on 29 December 2001. On 14 January 2002 the applicant applied for review of that decision in the RRT. On 2 October 2002, the RRT handed down its decision made on 11 September 2002 affirming the decision of the delegate (the Decision).
The decision
The protection visa application was based on the applicant's claims that as a Muslim person of Tamil ethnicity he provided medicines and material for uniforms to an associate in Colombo, Sri Lanka which may have been for the use of the LTTE . He claimed that his actions were discovered by the Tamil Nadu authorities and he was subsequently arrested and detained and was released on the payment of a bribe [court book, pages 2-5]. The RRT found that the applicant had been issued with a passport and allowed to leave India because he was of no interest to the authorities [court book, page 75]. The RRT also alternatively found that was not unreasonable for the applicant to relocate within India [court book, page 76]. Because of this, the RRT found that the applicant did not have a well-founded fear of persecution for a Convention reason.
Litigation history: previous judicial review proceedings
The Decision has been the subject of previous judicial review proceedings instituted by the applicant. Including appeals, this is the fourth set of proceedings instituted by the applicant in relation to the Decision.
Federal Magistrates Court application: SYG1383/2002 (NADD)
On 28 October 2002, the applicant filed an application in the Federal Court seeking review of the RRT decision (Aff4). That application was remitted to the Federal Magistrates Court by an order of Whitlam J made on 22 November 2002 (Aff22).
On 15 May 2003, Raphael FM dismissed the application with costs (Aff24). His Honour concluded that:
I am unable to see any jurisdictional error in the actions of this Tribunal [court book, page 31]
Federal Court proceedings: NSD667/2003 (NADD)
On 3 June 2003, the applicant filed a notice of appeal in the Federal Court appealing from the decision of Raphael FM (Aff32).
In the notice of appeal the applicant asserted amongst other things that the RRT had identified the wrong issue, ignored relevant material and reached a mistaken conclusion.
On 15 September 2003, Allsop J dismissed the appeal with costs. His Honour proceeded to give an ex tempore decision in the absence of the appellant pursuant to Order 52 rule 38A(1)(d) of the Federal Court Rules.
On 28 October 2003, a re-instatement application was heard by Allsop J and the orders made on 15 September 2003 were set aside and the matter re-listed for a hearing.
On 19 December 2003, Allsop dismissed the appeal making "liberal use of the terms" of the reasons given on 15 September 2003.
His Honour stated that:
The approach of the learned Magistrate was directed significantly to the issues before him: bias and lack of good faith. However, he also said that the conclusions reached by the Tribunal was one capable of being reached on the evidence. I agree. [Aff47 to 48].
His Honour proceed to find no jurisdictional error [Aff49].
Application for special leave to appeal to the High Court: S24/2004 (NADD)
On 14 January 2004, the applicant filed an application for special leave to appeal to the High Court (SG1). On 28 October 2004 the applicant filed a (draft) notice of appeal in the High Court (SG2).
On 3 March 2005, the application for special leave was dismissed with costs by McHugh and Haydon JJ [SG3]. McHugh J said:
An appeal would have no prospects of success [SG4].
As I explained to the applicant the issue to be resolved is quite simple. If the decision of the RRT is a privative clause decision his judicial review application is incompetent as it was not filed within time.
Ordinarily, the question of whether a tribunal decision is a privative clause decision needs to be resolved at a final hearing. However, where that issue has already been determined by this Court or by the Federal Court, that issue can be decided at an interlocutory stage. In this case in his judgment on 15 May 2003 in NADD v Minister for Immigration [2003] FMCA 203, at paragraph 21, Raphael FM found that the RRT decision was free from any jurisdictional error. The decision of Raphael FM was affirmed on appeal by the Federal Court in NADD v Minister for Immigration [2003] FCA 1438. Allsop J found no error in the decision of Raphael FM. Further, at paragraph 25 his Honour stated:
Having examined the Tribunal's reasons and the material before it as well as the reasons of the learned Magistrate at first instance, I see no error, jurisdictional or otherwise, which might be sufficient for the invocation of s 39B(1) or s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
As his Honour was unable to identify any error in the decision of Raphael FM he dismissed the appeal with costs.
I consider myself bound by the decision of the Federal Court. I note that the High Court refused special leave to appeal against the decision of the Federal Court. In the circumstances, I take the view that the question of whether the decision of the RRT is a privative clause decision has been conclusively answered in the affirmative. It follows that the judicial review application is incompetent as it was not filed within time.
Accordingly, the judicial review application must be dismissed as incompetent and I do so.
Costs should follow the event. Mr Muthalib tells me that the Minister has incurred costs of some $3,400 in responding to the judicial review application. The Minister seeks an order for costs fixed in the sum of $2,500. I accept that costs of that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. The applicant referred to his impecuniosity. However, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.Finally, I will order that the RRT be joined as the second respondent to the proceedings, consistently with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 August 2005
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