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MIGRATION - Review of Refugee Review Tribunal decision - earlier proceedings in the Federal Court - applicant expressing a desire to seek to appeal against that decision - present proceedings instituted in the wrong court - transfer of the proceeding to the Federal Court.

SZCXD v Minister for Immigration [2004] FMCA 747 (1 November 2004)

SZCXD v Minister for Immigration [2004] FMCA 747 (1 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCXD v MINISTER FOR IMMIGRATION
[2004] FMCA 747




MIGRATION - Review of Refugee Review Tribunal decision - earlier proceedings in the Federal Court - applicant expressing a desire to seek to appeal against that decision - present proceedings instituted in the wrong court - transfer of the proceeding to the Federal Court.




Applicant:
SZCXD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG613 of 2004




Delivered on:


1 November 2004




Delivered at:


Sydney




Hearing date:


1 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms B Rayment

Sparke Helmore




INTERLOCUTORY ORDERS

(1) The Court directs that the transcript of today's hearing be obtained and placed on the court file for the assistance of the parties and the Federal Court.

(2) The Court directs that the name of the applicant is not to appear on the transcript of today's hearing.

(3) The proceedings are transferred to the Federal Court pursuant to s.39 of the Federal Magistrates Act 1999 (Cth) and rule 8.02 of the Federal Magistrates Court Rules 2001 (Cth).

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG613 of 2004

SZCXD



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a motion of which notice was given on 7 July 2004 seeking the summary dismissal of an application for judicial review filed on 8 March 2004. The motion asserts that the judicial review application is an abuse of process. The judicial review application sought review of a decision by the Refugee Review Tribunal ("the RRT"). In addition, the Minister relies upon a notice of objection to competency filed on 29 March 2004. That notice asserts that the judicial review application was not filed within time. The notice of objection to competency was not filed within the time prescribed by Order 54B of the Federal Court Rules. However, I would not apply that time limit in view of the fact that the application and an affidavit filed on the same day in support of it were not served on the Minister.

2. At the outset of today's hearing I raised with the parties a preliminary issue. That is, that it appears from the applicant's affidavit filed on 8 March 2004 in support of his application that he is seeking an extension of time to appeal against a decision of Emmett J of the Federal Court. That raised in my mind the question of whether the applicant has instituted proceedings in the wrong court.

3. The background to the matter appears both in an affidavit by Katie Jane Bryant made on 9 July 2004read in support of the notice of motion and objection to competency and also in written submissions prepared on behalf of the Minister on 18 October 2004 and filed in my chambers on 21 October 2004. The written submissions includes a helpful chronology which I adopt for the purposes of this judgment:

BACKGROUND







11 July 1998
Applicant arrives in Australia






DIMIA






11 August 1998
Applicant lodges application for protection visa






14 October 1998
Delegate of respondent refuses application for a protection visa






RRT N98003665






9 November 1998
Applicant applies to RRT for review of delegates decision






11 May 2000
RRT affirms delegate's decision






Federal Court N645/2000






19 June 2000
Applicant lodges application for judicial review in Federal Court.






2 August 2000
Directions hearing before Lindgren J.

Applicant fails to attend. Directions adjourned to 22 August and applicant ordered to file and serve an amended application with particulars.






22 August 2000
Second directions hearing before Lindgren J.

Applicant attends. Application dismissed for non attendance and failure to comply with orders. Applicant allowed three weeks to put on motion to set aside.






High Court S89






22 February 2001
Applicant joined as part of Lie class action






25 November 2002
Gaudron J makes orders disbanding class action






29 May 2003
Affidavit of Adrian Joel lodged in the HC annexing copies of the delegate's decision, RRT decision and a draft order nisi






Federal Court
N2072 of 2003






9 February 2004
Directions hearing






20 February 2004
Emmett J dismisses application for a draft order nisi






Federal Magistrates Court SZ613 of 2004






8 March 2004
Applicant lodges application for judicial review of RRT decision in Federal Magistrates Court






29 March 2004
Respondent files notice of objection to competency






7 July 2004
Directions hearing

Respondent files notice of motion for summary dismissal






13 July 2004
Respondent files affidavit in support of notice of motion




4. The chronology has been amended to make clear that on 22 August 2000, His Honour Lindgren J dismissed an earlier proceeding for failure to comply with court orders. Background information also appears in paragraphs 4-13 of the Minister's written submissions, which I also adopt for the purposes of this judgment:

The applicant claimed to be a member of the Bangladesh National Party (BNP) and that he had held the position of vice-president of his local branch.[1] He claimed that, on 10 June 1998, he participated in a rally at which a rival member of the then ruling Awami League (AL) party was killed and others were severely injured.[2] Charges were laid against the applicant in relation to this incident, a warrant was issued for his arrest and his family was tortured by AL members.[3]

The RRT accepted that the applicant was a member and officeholder of the BNP[4], but found that his supporting documents were not of themselves "satisfactory substantiation" of his claims of past harm.[5] Having regard to the applicant's oral evidence that the details of the charges against him were true, the RRT found that, even if the documents were genuine, the applicant would have been validly charged over a criminal act.[6] This would not amount to Convention related persecution.[7]

The RRT found that the applicant's claim to have fled Bangladesh because he feared being arrested was not credible given that he had sought a visa to come to Australia months before the June 1998 rally.[8] The RRT considered equally devoid of credibility the applicant's claim to fear impending trouble for the BNP.[9]

The RRT was also not satisfied that the applicant's claim of having to leave Bangladesh to escape political persecution was credible. It did not accept that he had attended the June 1998 rally or that charges were laid against him as a result. Furthermore, it did not accept that he and his family were targeted by the rival AL.[10] In any event, the RRT found that the Bangladesh authorities were willing and able to protect persons in the applicant's claimed situation.[11]

There is no error in the approach and findings of the RRT. Accordingly, as the decision is absent any jurisdictional error it is a privative clause decision to which the time limits in s.474(1A) would apply. The application is incompetent.

Previous litigation

The applicant has previously filed one application for judicial review in the Federal Court and two applications in the High Court to review the same decision of the RRT made on 11 May 2000.

Federal Court - N645 of 2000

On 19 June 2000, the applicant filed an application for judicial review in the Federal Court of Australia.[12] Those proceedings were allocated Federal Court proceedings number N645 of 2000.

On 22 August 2000, Lindgren J dismissed Federal Court proceedings number N645 of 2000 with costs because the applicant had failed to file an amended application providing particulars of the grounds of review being relied upon.[13] Lindgren suspended entry of his orders for 21 days to enable the applicant to file a notice of motion to set aside the orders for dismissal.

High Court - Muin and Lie Class Action

On 1 March 2001, the applicant joined the Muin and Lie class action.[14] Those proceedings were dismissed on 20 June 2003 by force of orders made by Gaudron J on 25 November 2002 and McHugh J on 16 June 2003.[15]

High Court - S1690 of 2003, Federal Court - N2072 of 2003

On 29 May 2002, the applicant's former solicitor, Adrian Joel, filed an application for an order nisi and affidavit in the High Court.[16] The application was allocated High Court proceedings number S1690 of 2003. The application was remitted instanter to the Federal Court, where it was allocated proceedings number N2072 of 2003 . The application for an order nisi was refused by Emmett J on 20 February 2004.[17]

5. It is apparent from that background information that there have been three earlier court proceedings in respect of the same decision of the RRT. The present application is the fourth such proceeding. In the circumstances, it is not surprising that the Minister has sought to have the present application dismissed as an abuse of process.

6. I have on previous occasions dismissed judicial review applications in similar circumstances as an abuse of process. However, in the present case it appeared to me from the applicant's affidavit that he may have been confused as to the manner in which he should seek to appeal against the decision of Emmett J. It appears from paragraphs 11, 12, 13 and 14 of that affidavit that the applicant is seeking an extension of time for such an appeal. Obviously, that is not something that can be granted in this Court. The applicant was cross-examined on his affidavit by Ms Rayment. The applicant stated that he received advice from his former solicitor, Mr Adrian Joel.

7. The applicant confirmed that he was advised about his rights of appeal against the decision of Emmett J. He confirmed that he had chosen to institute the present proceedings in this Court in the light of that advice. Nevertheless, in re-examination the applicant told me that he did not understand the difference between the Federal Magistrates Court and the Federal Court. It may be that the applicant was simply seeking to pursue the course of action that seemed most advantageous to him at the time. However, I am prepared to accept that the applicant was confused as to the manner in which he should pursue his rights and the appropriate forum.

8. The applicant has not been legally represented in the present proceedings. When read with the affidavit of 8 March 2004, the application which, on its face purports to be a simple application for judicial review, can be interpreted as an application for an extension of time to appeal against the decision of Emmett J. The application in its present form would not be competent as I understand that in addition leave to appeal would need to be sought. That is a hurdle that cannot be overcome in this Court. In the unusual circumstances in this matter, I have come to the view that the interests of justice require that proceedings be transferred to the Federal Court pursuant to s.39 of the Federal Magistrates Act 1999 (Cth) and Part 8 of the Federal Magistrates Court Rules 2001 (Cth).

9. I am influenced in particular by the apparent confusion in the mind of the applicant as to the appropriate forum for the proceedings and his desire, expressed in his affidavit, to seek an extension of time to appeal against the decision of Emmett J. The manner in which the Federal Court may view a proceeding transferred in these circumstances is something that I cannot predict and should not attempt to influence. However, it does appear to me that at a minimum, the applicant would require leave to appeal as well as an extension of time.

10. Ms Rayment opposed a transfer to the Federal Court while the applicant supported it. Ms Rayment sought the summary dismissal of the proceedings in this Court. That would have left the applicant to institute fresh proceedings in the Federal Court either seeking leave to appeal against my decision or seeking leave to appeal against the decision of Emmett J. The latter application, if made now, would seem utterly hopeless. An application for leave to appeal and an extension of time, if made properly, on 8 March 2004 may have had some better prospects of success but that is not for me to determine. In the interests of justice, I will give the applicant the benefit of the doubt and proceed on the basis that in substance, he was seeking to pursue an action that can only be pursued in the Federal Court.

11. I will therefore order that the proceedings be transferred to the Federal Court. The applicant should bear the costs of the proceedings in this Court. The application and supporting affidavit were not served as they should have been. The supporting affidavit was critical to the outcome of proceedings today and Ms Rayment had not seen it before today. The Minister has been misled by the form of the application and has incurred costs completely unnecessarily. Under the event based scale of costs applicable in this Court, costs of the order of $2,000 would be recoverable on a party/party basis to this point. In addition, the Minister should receive a daily hearing fee for a half day hearing. That leads to a costs outcome in round figures of $2,500.

12. I will order that the applicant pay The Minister's costs and disbursements of and incidental to the application up to and including today, fixed in the sum of $2,500. I will also direct that the transcript of today's hearing be obtained and placed on the court file for the assistance of the parties and the Federal Court. That completes the matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 November 2004


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

[1] court book, page 61

[2] court book, page 60

[3] court book, pages 60 & 61

[4] court book, page 62.1

[5] court book, page 62.5

[6] court book, page 62.8

[7] court book, pages 62.10-63.1

[8] court book, page 63.2

[9] court book, pages 63.8-64.2

[10] court book, page 64.3

[11] court book, page 64.4

[12] Annexure A, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, p. 4.

[13] Annexure B, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, p. 8.

[14] Annexure C, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, p. 14.

[15] Annexures D & E, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, pp. 26 & 29.

[16] Annexure F, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, p. 31.

[17] Annexure G, Affidavit of Katie Jane Bryant affirmed on 9 July 2004, p. 53.
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