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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - Minister's objection to competency - RRT decision previously found to be a privative clause decision - objection to competency upheld.

SZDJD v Minister for Immigration [2004] FMCA 900 (29 November 2004)

SZDJD v Minister for Immigration [2004] FMCA 900 (29 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJD v MINISTER FOR IMMIGRATION
[2004] FMCA 900




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - Minister's objection to competency - RRT decision previously found to be a privative clause decision - objection to competency upheld.




Federal Court Rules 1979 (Cth)

Federal Magistrates Court Rules 2001 (Cth)

Judiciary Act 1903 (Cth), s.39B

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

NARD v Minister for Immigration [2003] FMCA 60

NARD of 2002 v Minister for Immigration [2003] FCA 580

Applicant:
SZDJD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1152 of 2004




Delivered on:


29 November 2004




Delivered at:


Sydney




Hearing date:


29 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 19 April 2004 is dismissed as incompetent.

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

(3) No further application by this applicant to review the decision of the Refugee Review Tribunal made on 26 June 2002 and handed down on 18 July 2002 is to be accepted for filing, except by leave of the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1152 of 2004

SZDJD



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This matter came before me this afternoon on the Minister's motion of which notice was given on 2 June 2004. The motion seeks the summary dismissal of a judicial review application filed on 19 April 2004. The judicial review application sought review of a decision of the Refugee Review Tribunal ("the RRT") made on 26 June 2002 and handed down on 18 July 2002.

2. The motion seeks the summary dismissal of the judicial review application in accordance with the doctrine of res judicata, issue estoppel, Anshun estoppel and also on the basis of rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules").

3. The Minister also relies upon a notice of objection to competency filed on 26 May 2004. I elected not to apply the time limit on objections to competency in Order 54B of the Federal Court Rules. The objection to competency relies upon s.477(1A) of the Migration Act 1958 (Cth) ("the Migration Act"). As the objection to competency raises an issue of jurisdiction, I have dealt with that first.

4. In support of the motion and objection to competency, Ms Bautista read the affidavit of Bernadette Marie Rayment made on 1 June 2004. Annexed to that affidavit is a notice of discontinuance for special leave to appeal in the High Court. Exhibited to that affidavit is a copy of the application book in the High Court. Ms Bautista also relied on written submissions prepared in support of the motion and objection to competency and filed in my chambers on 22 November 2004. I adopt by way of background paragraphs 4-8 of those written submissions for the purposes of this judgment:

The applicant, a citizen of Bangladesh, claimed to have suffered persecution at the hands of fundamentalist Muslims because of his Buddhist religion. He claimed that he was mistreated at school by the authorities and that he was beaten and had a false charge lodged against him. He stated that when he sought help from the police they threatened him. The applicant also claimed that he protested against the rape and murder of a Buddhist girl and that he got caught up in the middle of protests. He further claimed that a fellow monk was detained and tortured and thereafter he left Bangladesh in fear of his life and went to Korea. The applicant also indicated that he had repudiated his vows.

RRT's findings

The RRT did not accept that the applicant was a credible witness and found that he had fabricated his claims and documents in support of his application for a protection visa. The RRT found that the applicant had not been persecuted in Bangladesh and did not leave Bangladesh in order to escape persecution. Furthermore, the applicant participated in a Buddhist protest in Canberra to provide himself with a profile of, and to enhance his claims to be a refugee. It found that there was no more than a remote chance that the applicant would suffer harm as a Buddhist if he were to return to Bangladesh.

Previous proceedings

On 6 March 2003, Federal Magistrate Barnes made orders dismissing [an earlier] application remitted from the Federal Court of Australia for judicial review of the RRT decision with costs.[1] Her Honour, after considering the applicant's application for judicial review as well as his written and oral submissions, found that the RRT's decision was "a privative clause decision within s.474 of the Act."[2]

On 20 March 2003, the applicant filed a notice of appeal for review of the judgment of Federal Magistrate Barnes.[3] On 11 June 2003, the Honourable Justice Whitlam made orders dismissing the appeal with costs.[4]

On 25 June 2003, the applicant filed an application for special leave to appeal and draft notice of appeal.[5] On 7 May 2004 the applicant filed a notice of discontinuance of the application for special leave to appeal.[6]

5. In my view, I have no jurisdiction to entertain this application any further. I agree with and adopt paragraphs 9-11 of the Minister's written submissions:

The respondent moves on its notice of objection to competency filed on 26 May 2004 and contends that this Court does not have jurisdiction to review the RRT's decision as s.477(1A) of the 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 must be made within 28 days of notification of the RRT's decision.

There has been a full determination of the merits of the applicant's case and a finding that the decision of the RRT was a "privative clause decision" in the Federal Magistrates Court.[7] Moreover, that decision was upheld on appeal by the Honourable Justice Whitlam in the Federal Court.[8] The decision of the RRT is a privative clause decision and the time limits in s.477(1A) of the Act apply.

The RRT made its decision on 26 June 2002 and handed it down on 18 July 2002.[9] The present application for judicial review was not filed until 19 April 2004. In any event, he was deemed to have been notified of the RRT's decision on 29 July 2002 by virtue of ss.441A(4), 441C(4) and 441G(1) of the Act. Accordingly, a valid application for judicial review of his RRT decision could only have been made to the Federal Magistrates Court by 26 August 2002. The Court has no power to extend the time limits.

6. The matter has already been dealt with both in this Court and the Federal Court. In the decision in NARD v Minister for Immigration [2003] FMCA 60 at paragraph 21 Federal Magistrate Barnes said:

No jurisdictional error or denial of procedural fairness has been established. The decision is a privative clause decision within s.474 of the Act. It has not been argued, nor does the material before the Court establish, breach of any of the so called Hickman provisos. As no reviewable error has been established it follows that the applicant's claim for relief must be dismissed.

7. Federal Magistrate Barnes' decision was upheld on appeal in the Federal Court. That decision is reported as NARD of 2002 v Minister for Immigration [2003] FCA 580. In a short judgment His Honour Whitlam J found no error in the decision of this Court. The applicant sought special leave to appeal against that decision but discontinued that application.

8. In the circumstances, the issue of whether the decision of the RRT is a privative clause decision has been conclusively determined.

9. The present application was not filed within the prescribed time limit in s.477(1A) of the Migration Act. I have taken into account that the present application is expressed somewhat more elaborately than was the application before Federal Magistrates Barnes. I have also taken into account the applicant's written submissions filed on 2 August 2004. I have also heard the applicant's short oral submissions. The applicant is plainly concerned about the outcome before the RRT and considers that he should receive a protection visa. However, nothing advanced by the applicant before me assists him in relation to the jurisdictional issue. I find that I have no jurisdiction to entertain the application for judicial review any further.

10. Accordingly I must and do dismiss the application summarily as incompetent.

11. On the question of costs, the application having been dismissed, Ms Bautista seeks an order for costs fixed in the sum of $2,500. I am satisfied that on a party/party basis costs of that order would have been reasonably and properly incurred on behalf of the Minister. The applicant does not oppose an order for costs in principle but sought time to pay. That is a matter that he can discuss with the Minister and her advisers. I will not require costs to be paid by any particular time.

12. 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.

13. Ms Bautista also seeks an order on behalf of the Minister that no further application in this court to review the decision of the RRT made on 26 June 2002 and handed down on 18 July 2002 be accepted for filing except by leave of the Court. I agree that such an order should be made. The outcome of today's proceedings is that I found a want of jurisdiction in this Court. There is no point in any further attempt at litigation in this Court unless jurisdiction could be found. The applicant should be required to demonstrate such jurisdiction before any further application is accepted for filing. The Minister should not be put to further trouble and expense in relation to future applications in respect of which the Court clearly has no jurisdiction.

14. I will therefore order that no further application by this applicant to review the decision of the RRT made on 26 June 2002 and handed down 18 July 2002 be accepted for filing in this Court, except by leave of the Court.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 December 2004


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[1] Exhibit BZR1, pp 26 - 37

[2] Exhibit BZR1, pp 35.35

[3] Exhibit BZR1, pp 38 - 40

[4] Exhibit BZR1, pp 41 - 45

[5] Exhibit BZR1, p 46

[6] Affidavit of Bernadette Marie Rayment sworn on 1 June 2004 (Affidavit), Annexure A

[7] Exhibit BZR1, pp 23 - 37

[8] Exhibit BZR1, pp 42 - 45

[9] Exhibit BZR1, p 1
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