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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political and religious persecution in India - objection to competency - application for judicial review filed outside prescribed time limit - whether the RRT decision is a privative clause decision considered - RRT decision previously found by the Federal Court to be free from jurisdictional error - fresh application probably doomed to fail - summary dismissal of application as incompetent.

SZDGN v Minister for Immigration [2004] FMCA 716 (23 September 2004)

SZDGN v Minister for Immigration [2004] FMCA 716 (23 September 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDGN v MINISTER FOR IMMIGRATION
[2004] FMCA 716




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political and religious persecution in India - objection to competency - application for judicial review filed outside prescribed time limit - whether the RRT decision is a privative clause decision considered - RRT decision previously found by the Federal Court to be free from jurisdictional error - fresh application probably doomed to fail - summary dismissal of application as incompetent.




Federal Court Rules

High Court Rules

Migration Act 1958 (Cth), s.477

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

Applicant:
SZDGN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1054 of 2004




Delivered on:


23 September 2004




Delivered at:


Sydney




Hearing date:


23 September 2004




Judgment of:


Driver FM




REPRESENTATION

Counsel for the Applicant:


Mr I Archibald




Solicitors for the Respondent:


Mr R White

Sparke Helmore



INTERLOCUTORY ORDERS

(1) The application for judicial review is dismissed summarily as incompetent.

(2) The applicant is to pay the respondent's party/party costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

(3) The Court directs that any further application by this applicant to review the decision of the Refugee Review Tribunal dated 19 February 2002 and handed down on 14 March 2002 is to be referred to a Federal Magistrate for directions.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1054 of 2004

SZDGN



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This matter came before me today on an objection to competency filed on 8 September 2004 on behalf of the respondent Minister in respect of an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") filed on 8 April 2004. No objections were raised to the lateness of the objection to competency and I did not apply the time limit in rule 3 of Order 54B of the Federal Court Rules. The Minister also proceeds upon a notice of motion filed on 13 July 2004, but for the reasons that follow it has not been necessary for me to deal with that notice of motion.

2. In support of both the objection to competency and the notice of motion the Minister relies upon two affidavits of Michael McCrudden. The first was made on 8 July 2004 and deals with the procedural history of the matter. The second was made on 7 September 2004 and annexes reasons for judgment of His Honour Mansfield J in earlier Federal Court proceedings S734 of 2004 in relation to the same decision of the RRT.

3. The matter came before me last week at which time Mr Archibald appeared on behalf of the applicant and successfully sought an adjournment to enable him to provide advice to the applicant pursuant to the panel advice scheme for applicants seeking judicial review of RRT decisions. Mr Archibald also appeared for the applicant today and I gave leave for him to file in court an amended application for judicial review. That amended applications sets out three grounds which are particularised asserting jurisdictional error by the RRT in the manner in which it dealt with the applicant's claims of religious and political persecution.

4. The issue that I have to decide is whether I have jurisdiction to entertain this application further. The relevant background is provided in a chronology prepared on behalf of the Minister and I adopt it for the purposes of this judgment:

DATE
EVENT
REF


BACKGROUND




16 September 2000
Applicant arrived in Australia
Court Book (CB) 14


DIMIA




23 October 2000
Applicant applied for a protection visa
CB 1-23


20 November 2000
Delegate refused protection visa application
CB 28-36


RRT




21 November 2000
Application for review lodged with RRT
CB 37-40


14 March 2002
RRT handed down decision
CB 51-69


HIGH COURT




24 March 2003
Applicant commenced proceedings in the High Court of Australia by way of an affidavit with a draft Order Nisi annexed

* High Court proceedings no. A166 of 2003.
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "B"


11 June 2003
Justice Hayne ordered that the application be remitted to the Federal Court.

* Federal Court proceedings no S734 of 2003.
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "C"


FEDERAL COURT



2 December 2003
Justice Selway made orders in relation to the further conduct of proceedings S734 of 2003.
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "D"


12 March 2004
Justice Mansfield made orders in relation to the further conduct of proceedings S734 of 2003.
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "E"


18 March 2004
Applicant filed a notice of motion and affidavit in support seeking an extension of time within which to file the proceedings
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "F"


26 March 2004
Justice Mansfield refused the extension of time to commence proceedings and dismissed the application with costs.
Affidavit of Michael McCrudden sworn

8 July 2004 Annexure "G"

&

Affidavit of Michael McCrudden sworn

7 September 2004 Annexure "A"


FEDERAL MAGISTRATES COURT



8 April 2004
Applicant filed an application for judicial review in the Federal Magistrates Court of Australia

* Proceedings SZ1054 of 2004.



13 July 2004
Respondent filed a notice of motion for summary dismissal and supporting affidavit



15 July 2004
Respondent served a notice of motion for summary dismissal and supporting affidavit



8 September 2004
Respondent filed and served a notice of objection to competency





5. The decision of the RRT was made on 19 February 2002 and handed down on 14 March 2002. The applicant was notified of the RRT decision by letter dated 14 March 2002. The applicant was obviously aware of that decision by 24 March 2003 when he commenced proceedings in the High Court seeking judicial review of the RRT decision. The application for judicial review in this Court was not instituted until 8 April 2004, which is well outside the prescribed period for the institution of judicial review proceedings in respect of tribunal decisions in this Court pursuant to s.477(1A) of the Migration Act 1958 (Cth) ("the Migration Act"). That section applies to tribunal decisions which are privative clause decisions.

6. Ordinarily, the issue of whether or not the RRT decision is a privative clause decision cannot be determined until a hearing is conducted. As I have observed in some other recent cases, that position may be different where the RRT decision has already been subjected to judicial review in this Court or another court. In this case, the applicant instituted proceedings in the High Court on 24 March 2003, which were remitted to the Federal Court.

7. His Honour Selway J made orders in relation to the further conduct of the proceedings on 2 December 2003 and Mansfield J made further orders on 12 March 2004. Pursuant to the High Court Rules, the applicant required an extension of time to pursue the proceedings that he had instituted originally in the High Court. On 26 March 2004, Mansfield J refused that application for an extension of time. His Honour gave reasons which, as I have already observed, are annexed to the second affidavit of Michael McCrudden. His Honour quoted at paragraphs 5 and 6 of his decision findings by the presiding member of the RRT which clearly establish that the protection visa application was rejected on credibility grounds. Put simply, the presiding member did not believe the applicant's claims. His Honour observed at paragraph 7 of his reasons:

Nothing has been put which could indicate jurisdictional error on the part of the Tribunal in reaching those conclusions. It is necessary for jurisdictional error to be demonstrated before the applicant could establish an entitlement to the orders which he seeks: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The grounds of complaint in the affidavit in support of the application are general in nature. Despite those asserted grounds, counsel today has not sought to support any of them by reference to any part of the reasons for decision of the Tribunal. No additional material has been adduced to support any of them. Accordingly, I am not satisfied that there is any prospect of the applicant succeeding in his application even if an extension of time were granted.

8. His Honour's reference to the affidavit in support of the application is a reference to the affidavit of Mark Wallace Clisby filed in the High Court on 24 March 2003. In that affidavit, as in the originating process filed in the High Court, it was asserted first, that the decision of the RRT involved an error of law; secondly, whether or not the error appears on the face of the record, that procedures required by law to be observed in connection with the making of the decision were not observed; thirdly, that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; fourthly, that there was no evidence or other material to justify the making of the decision, and lastly, that the decision was otherwise contrary to law.

9. The grounds of review were broadly expressed and not particularised. There was nothing before Mansfield J which led him to the view that there was any substance in those grounds. It is apparent from His Honour's reasons that little, if anything, was put in argument before him to support them. In the circumstances, it is hardly surprising that his Honour refused an extension of time.

10. In contrast, a detailed and particularised amended application has been put before me today. Mr Archibald has been given time to consider the RRT decision, to provide advice to the applicant and to prepare an application which articulates as best could be articulated grounds of review. I am confident that the amended application prepared by Mr Archibald presents in the best possible manner the grounds of review now asserted by the applicant. Nevertheless, the amended application struggles to rise above a simple contest over the merits of the RRT decision.

11. The amended application might be argued on the basis of no evidence or on the basis of jurisdictional unreasonableness or, possibly, on the basis of a want of probative evidence in support of findings. However the arguments might be put, in my view, they would fail if the Court concluded that the findings made by the presiding member were reasonably open to her on the material before her. As Mr Archibald readily conceded in his submissions to me this afternoon, very little was put before the Minister's delegate or the RRT in advance of the RRT hearing.

12. The presiding member was concerned that at the hearing important claims were made by the applicant for the first time. The amended application takes issue with particular findings made by the presiding member but, in my view, there is virtually no prospect that the Court could be persuaded that those findings were not reasonably open to the presiding member on the material before her. At paragraph 48 of the reasons for the decision of the RRT (court book, page 65) the presiding member said:

In summary I do not accept the applicant's claims because they are contrary to the independent information set out above, because the applicant did not provide any documentary or other support for his claims, because his claims at the hearing differed from details provided in his protection visa application, because he raised new claims at the hearing without any convincing reason why he had not previously mentioned the claims, and because the applicant's behaviour is inconsistent with a genuine fear of persecution.

13. While one may quibble with particular aspects of the RRT decision relating to the applicant's explanation for his failure to leave India promptly when he said he suffered harm in the nature of extortion by police in Punjab and why he chose to enter Australia during the 2000 Olympics and why he was able to leave India without being detected on a watch list, those are, in my view, in reality, disputes over the merits of the RRT reasoning. The applicant has a remedy should he wish to pursue such a dispute further. That remedy is to invite the Minister to intervene to substitute a more favourable decision. The applicant has no such remedy in this Court.

14. On the material before me, I am not persuaded that there is any proper basis for me to depart from the reasoning of Mansfield J in the earlier Federal Court proceedings. I agree with the views expressed by His Honour in those proceedings. The consequence is that I find that the decision of the RRT was and is a private clause decision. It necessarily follows that the application for judicial review in this Court was not filed within the time prescribed for the filing of such an application. The Court has no jurisdiction to extend that period.

15. Accordingly, I have no jurisdiction to further entertain the application and I dismiss it.

16. I order that the application for judicial review is dismissed summarily as incompetent and that the applicant is to pay the Minister's party/party costs of and incidental to the application, fixed in the sum of $4,000. The Court directs that any further application by this applicant to review the decision of the Refugee Review Tribunal made on 19 February 2002 and handed down on 14 March 2002 is to be referred to a Federal Magistrate for directions.

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

Associate:

Date: 29 October 2004
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