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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - claims rejected as implausible and as having no Convention nexus - RRT decision previously reviewed by the Federal Court which found no legal error - RRT decision a privative clause decision - judicial review application dismissed as incompetent.

SZDKV v Minister for Immigration [2004] FMCA 849 (22 November 2004)

SZDKV v Minister for Immigration [2004] FMCA 849 (22 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKV v MINISTER FOR IMMIGRATION
[2004] FMCA 849




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - claims rejected as implausible and as having no Convention nexus - RRT decision previously reviewed by the Federal Court which found no legal error - RRT decision a privative clause decision - judicial review application dismissed as incompetent.




Federal Court Rules

Judiciary Act 1903 (Cth), s.39B

High Court Rules

Migration Act 1958 (Cth), ss.441A, 441C, 474, 477, 483A

Applicant S341 v Minister for Immigration [2004] FCA 168

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966

NADR v Minister for Immigration [2002] FCAFC 293

NADX v Minister for Immigration [2003] FCA 289

NADX v Minister for Immigration [2003] FCAFC 175

NADZ v Minister for Immigration [2003] FCA 118

Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, (2003) 211 CLR 476

SZATJ v Minister for Immigration [2003] FMCA 485

SZBXA v Minister for Immigration [2004] FCA 445

VAS v Minister for Immigration [2002] FCAFC 351

Applicant:
SZDKV




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1240 of 2004




Delivered on:


22 November 2004




Delivered at:


Sydney




Hearing date:


22 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms J Bautista

Sparke Helmore




INTERLOCUTORY ORDERS

(1) The application for judicial review filed on 29 April 2004 is summarily dismissed as incompetent.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

(3) No further application to this Court by the applicant to review the decision of the Refugee Review Tribunal handed down on 17 October 2002 is to be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1240 of 2004

SZDKV



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a notice of motion seeking the summary dismissal of a judicial review application filed on 29 April 2004. The judicial review application seeks a review of a decision of the Refugee Review Tribunal ("the RRT") refusing to grant the applicant a protection visa. The respondent Minister moves on the motion of which notice was given on 25 June 2004 and also on a notice of objection to the competency of the judicial review application. The motion asserts res judicata and estoppel and asserts that the judicial review application is vexatious and an abuse of process. The objection to competency relies upon ss.477(1A) and 474 of the Migration Act 1958 (Cth) ("the Migration Act").

2. The Minister, in addition to seeking summary dismissal of the judicial review application, seeks indemnity costs fixed in the sum of $3,000 and further seeks an order that the applicant be prevented from filing a further application to review the same decision of the RRT except by leave of the Court.

3. Ms Bautista submits that I should not apply the time limit on objections to competency prescribed in Order 54B of the Federal Court Rules. I agree. That time limit was prescribed prior to the decision of the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. The basis upon which the Court deals with judicial review applications changed following that decision of the High Court. As a result of that change, there now arises a jurisdictional issue (namely the existence or absence of jurisdictional error) which may be appropriate to determine in advance of a final hearing. I am satisfied that this is such an occasion. There is no particular reason why the Minister should be required to seek an early resolution of that issue within a certain time after the filing of the judicial review application. I will not therefore apply the time limit on objections for competency set out in Order 54B.

4. The Minister relies upon an affidavit by Rohan John White filed on 25 June 2004. I received that affidavit and annexures into evidence. I also received as an exhibit the appeal book prepared for earlier Federal Court proceedings in relation to the same RRT decision. The Minister also relies upon written submissions filed on 19 October 2004. Ms Bautista also made oral submissions today on behalf of Minister.

5. The applicant filed written submissions on 10 August 2004 and I assume that these relate both to the notice of objection to competency and also the notice of motion. The applicant's written submissions are formulaic in content. The applicant told me that these were prepared with the assistance of a friend who is not a migration agent. He told me that he did not pay any money to his friend for that assistance. The applicant did not wish to make any oral submissions.

6. The procedural background to this matter is set out in Mr White's affidavit. Annexure A to that affidavit is a chronology which I adopt for the purposes of this judgment:

BACKGROUND

Applicant born in Bangladesh 24.08.70

Applicant arrived in Australia 03.07.78

DIMIA

Application for protection visa lodged 21.06.00

Delegate's decision 13.07.00

RRT

Application for review lodged 03.08.00

RRT hearing 23.09.02

RRT decision handed down 17.10.02

FEDERAL COURT

Application for judicial review lodged 11.11.02

Directions hearing 05.12.02

Respondent filed and served court book 10.12.02

Madgwick J dismissed application with costs 18.03.03

FULL COURT OF THE FEDERAL COURT

Notice of appeal lodged 08.04.03

Callover 30.04.03

Black CJ, Heerey and Finn JJ dismissed appeal with costs 13.08.03

HIGH COURT

Application for special leave to appeal filed 10.09.03

Application deemed abandoned 10.03.04

FEDERAL MAGISTRATES COURT

Application for judicial review lodged 29.04.04

Scheduled directions hearing 10.08.04

7. In addition, I adopt parts of paragraphs 4-14 of Ms Bautista's written submissions by way of background:

The applicant claimed that he assisted a woman to escape from a `trafficking gang' operating in his village. He claimed that he reported the criminal activity to the police and that gang members later pursued him. He claimed that his shop was burnt down in August 1997. He also claimed that he was attacked and forced into hiding and had false charges filed against him in October 1997 that he was involved in trafficking women. He claimed to fear harm from the `trafficking gang' and the Bangladeshi police.

The RRT simply did not believe the applicant's claims and found them to be `implausible'.[1] In support of its finding, the RRT considered that the applicant's actions would not have attracted the claimed level of attention from the alleged criminals and the police. The RRT also found that if the applicant really was wanted by the police he would have been unable to obtain a passport, depart the country and work in the Bangladesh High Commission as he claimed.[2]

As an alternative basis to reject the applicant's claim for protection, the RRT found that his claims had no Convention nexus. Whilst accepting that there may be political links between criminals and the police, this fact did not make political opinion the "essential and significant motivation" for the feared harm. The RRT rejected the claim that the harm suffered by the applicant was for reasons of his political opinion.[3]

...

Previous proceedings

On 11 November 2002, the applicant filed an application for judicial review in the Federal Court of Australia.[4] Those proceedings were given Federal Court proceedings number N1188 of 2002 and sought review of the same RRT that is the subject of the current proceedings.

The applicant's previous application pleaded without particulars that the RRT did not follow proper procedures, the decision was "affected by an error of law and jurisdictional error", and that there was no evidence to justify the making of the decision.

On 1 April 2003, the Honourable Justice Madgwick ordered that the application be dismissed with costs.[5] In dismissing the application, His Honour held:

The Tribunal Member's disbelief of the applicant evinces no jurisdictional error. In the circumstances, neither does his additional and inessential conclusion that reasons of political opinion, presumably including imputed political opinion, were not involved. No other jurisdictional error is apparent to me.[6]

On 8 April 2003, the applicant filed a notice of appeal in Federal Court of Australia proceedings number N436 of 2003.[7] The notice of appeal contained the following grounds: that the RRT decision was "affected by an error of law and procedural fairness" and that there was no evidence to justify the making of the decision.

On 13 August 2003, the Full Court of the Federal Court constituted by the Honourable Chief Justice Black and Justices Heerey and Finn ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.[8] Their Honours held:

We have read the reasons of the learned primary judge. His Honour carefully considered the arguments that were said to give rise to questions of law. His Honour concluded that they did not make out any legal error and that there was no basis for him to interfere with the decision of the Tribunal. There is no reason to doubt the correctness of his Honour's conclusions.[9]

On 10 September 2003, the applicant filed an application for special leave to appeal in the High Court of Australia, which was given proceedings number S497 of 2003.[10] The application pleaded that the RRT decision was affected by the High Court decision of Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal. It also pleaded that the RRT did not follow proper procedures.

On 11 March 2004, the Deputy Registrar of the High Court sent a letter to the applicant informing him that his application for special leave to appeal was deemed abandoned pursuant to Order 69A of the High Court Rules.[11]

8. Ms Bautista also deals with the applicant's present judicial review application in paragraphs 15-19 of their written submissions. I also adopt those paragraphs for the purposes of this judgment:

The present application filed in the Federal Magistrates Court on 29 April 2004 pleads numerous grounds of review without particulars. The applicant complains that:

i) The RRT took this decision in bad faith;

ii) The Migration Act was not observed properly;

iii) The RRT failed to consider my claims under UN Convention 1951 and Australian common law;

iv) There were significant judicial errors and the RRT decision was based on doubts and bias;

v) The RRT failed to inform me the information that was a reason and part of a reason to affirm a decision under review.

The application also acknowledges that it "is late" and makes a bland reference to the decision of the High Court in Plaintiff S157/2002.[12] The application also states that detailed grounds will be provided later.

On 10 August 2004, the applicant filed a document in the form of submissions titled "Applicant's arguments for competency". The document is formulaic in its terms and a familiar precedent to the Court. It variously asserts without particulars that the RRT breached the rules of natural justice and multiple sections of the Act, the RRT's decision was based on a DFAT report, the RRT's member's neutrality was suspect, the RRT ignored materials and evidence provided to it by the applicant and failed to follow proper procedures. In the absence of particulars, these grounds are meaningless.

The applicant also attempts to draw some analogy between this case and that considered in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 and in particular the letter referred to at paragraph 253 by Hayne J in which the Court found that the applicant was misled by a letter emanating from the RRT to believe that the RRT member had considered each of the documents addressed by the delegate. Unlike Muin, what the applicant has not proved or even sought to prove in this case that:

b) Based upon the letters he had a belief that the documents set out in the delegate's decision had been sent and considered by the RRT (cf. Muin at paragraph 255);

c) The RRT did not in fact receive those documents (cf. Muin at paragraph 250);

d) The RRT did not in fact review those documents (cf. Muin at paragraph 250);

e) Had the applicant been of the opinion in (i) and known of (ii) and (iii), he would have made further submissions and drawn them to the RRT's attention (cf. Muin at paragraph 255).[13]

This ground of review cannot succeed unless the applicant establishes the necessary factual substratum to enliven it.[14] The remainder of the applicant's document does not raise any separate grounds.

9. It is plain to me that the decision of the RRT sought to be reviewed by the applicant is a privative clause decision for the purposes of the Migration Act. Having regard to the earlier decisions of Madgwick J and the Full Federal Court in respect of the same RRT decision, it is also plain that the lack of any jurisdictional error in the decision of the RRT has been conclusively established.

10. I note that in the case of SZBXA v Minister for Immigration [2004] FCA 445 Hill J said that this Court should deal with the jurisdictional issue of whether the RRT decision is a privative clause decision in advance of anything else. That is the course that I am now following. I agree with and adopt for the purposes of this judgment paragraphs 20-22 of Ms Bautista's written submissions:

The respondent moves on its notice of objection to competency filed on 29 June 2004 and contends that this Court does not have jurisdiction to review the RRT's decision as s.477(1A) of the Migration Act provides that an application to the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Act in respect of a privative clause decision must be made within 28 days of the notification of the RRT decision.[15]

The RRT made its decision on 24 September 2002 and handed it down on 17 October 2002. The decision was also sent to him on 29 May 2002 by certified post.[16] Sections 441A(4) and 441C(4) of the Act effectively provide that the RRT's reasons are taken to have been received by the applicant 7 working days after 17 October 2002. The present application for judicial review was not filed until 29 April 2004, well outside the 28 day period. As there is non-compliance with s.477(1A) of the Act, the Court has no jurisdiction to hear the application.[17]

The RRT's decision is absent any jurisdictional error and is consequently to be properly regarded as a "privative clause decision": NADX v Minister for Immigration [2003] FCAFC 175 (13 August 2003) per Black CJ, Heerey and Finn JJ at [6]; upholding on appeal the judgment of Madgwick J in NADX v Minister for Immigration [2003] FCA 289 (18 March 2003).

11. In my view, the issues raised in the present application before the court were either all conclusively dealt with by the Federal Court in the earlier proceedings or lack substance. The only issues that could be described as new issues in the present application are the assertions of bad faith and bias. However, such allegations are meaningless in the absence of particulars and evidence and there is neither in this case.

12. On my own perusal of the RRT decision, it is plain that the allegation of bad faith and bias has no substance. To that extent, the present applications would be doomed to fail in any event.

13. I find that the decision of the RRT subject to review in the present proceedings is a privative clause decision. Accordingly, the application for judicial review filed on 29 April 2004 is incompetent. The applicant was obviously aware of the RRT decision by 2002 and the present application was instituted well outside the prescribed 28 day time limit. As I have no jurisdiction to extent that time limit, the application is incompetent and must be dismissed summarily. I will so order.

14. It is unnecessary in the circumstances to deal with the grounds raised in the respondent's notice of motion. However, I will deal with the relief sought of indemnity costs and a restraint on further applications. If I had considered the claim of abuse of process and found that claim to have been proven, I would have granted the indemnity costs application. The applicant told me that he is impecunious but that is not a reason to refrain from making a costs order. I have not dealt with the asserted abuse of process and in the circumstances, I do not consider it appropriate to make an indemnity costs order. I will deal with costs on the usual party/party basis. 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.

15. I will make order 3 sought in the notice of motion. In making that order, I have regard to the procedural history of the matter. There have been three earlier legal proceedings in respect of the same RRT decision. The previous proceedings have been found to lack substance or were abandoned. The present application suffers from the same vices as the earlier application to the Federal Court. In addition, the present application contains an allegation of bad faith that should never have been made. The applicant should be called upon to justify any further application to review the same RRT decision in this Court.

16. I will order that the application for judicial review filed on 29 April 2004 is summarily dismissed as incompetent; the applicant is to pay the Minister's costs and disbursements of an incidental to the application which I fix in the sum of $2500 and no further application to this court by the applicant to review the decision of the RRT handed down on 17 October 2002 is to be accepted for filing except by leave of the Court.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 November 2004


--------------------------------------------------------------------------------

[1] Affidavit of Rohan John White sworn on 24 June 2004 ("Affidavit"), exhibit RJW1, p. 88.5

[2] Affidavit, exhibit RJW1, p.88.6

[3] Affidavit, exhibit RJW1, p.88.8

[4] Affidavit, exhibit RJW1, pp 1-3

[5] NADX v Minister for Immigration [2003] FCA 289 (18 March 2003), at Affidavit, exhibit RJW1, pp 90-95

[6] ibid, p. 94.4

[7] Affidavit, exhibit RJW1, pp. 96-97

[8] NADX v Minister for Immigration [2003] FCAFC 175 (13 August 2003), at Affidavit, annexure B, pp. 4-8

[9] ibid, p.7.2

[10] Affidavit, annexure C, pp.9-11

[11] Affidavit, annexure D, p.12

[12] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

[13] See NADR v Minister for Immigration [2002] FCAFC 293 at paragraphs 19 to 26 (per Kiefel J) and NADZ v MIMIA [2003] FCA 118 at paragraph 14 (per Hely J).

[14] See for example NADR v Minister for Immigration [2002] FCAFC 293, VAS v Minister for Immigration [2002] FCAFC 351

[15] Note: SZBXA v Minister for Immigration [2004] FCA 445 at [4] per Hill J (15 April 2004).

[16] Affidavit, p. 77

[17] See: SZATJ v Minister for Immigration [2003] FMCA 485; upheld on appeal in Applicant S341 v Minister for Immigration [2004] FCA 168.
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