FEDERAL COURT OF AUSTRALIA

SZBML v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1195

SZBML v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1062 of 2004

BENNETT J

SYDNEY

14 SEPTEMBER 2004

THE COURT ORDERS THAT:

1.         Leave to appeal is refused.

2.         The purported appeal is dismissed. 

3.         The applicant is to pay the respondent’s costs in the sum of $2000.

4.         No further application by the applicant to review the decision of the Tribunal dated 18 June 2002 shall be accepted for filing, except by leave of the Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment and interlocutory orders made by Federal Magistrate Driver on 21 June 2004. His Honour summarily dismissed as incompetent the applicant’s application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 18 June 2002.  The Tribunal affirmed a decision of a delegate of the respondent (‘the delegate’) to refuse to grant to the applicant a protection (class XA) visa.

2                     The basis for his Honour’s decision was that the application was filed more than the 28 days after the notification of the Tribunal’s decision prescribed in s 477(1A) of the Migration Act 1958 (Cth) (‘the Act’).  His Honour found that the decision of the Tribunal is a privative clause decision.  As such, the time limit in s 477(1A) of the Act applies.  Section 477(2) precludes the Federal Magistrates Court from extending that time limit.  Accordingly, his Honour determined that the appeal was incompetent and should be summarily dismissed.

3                     The decision of the Federal Magistrates Court to dismiss a matter summarily is interlocutory: Re Luck (2003) 203 ALR 1 at 4; Wride v Schulze [2004] FCAFC 216 at [15] –[17]; s 24(1A) of the Federal Court of Australia Act 1976 (Cth)(‘Federal Court Act’) provides that an appeal cannot be brought from an interlocutory decision of the Federal Magistrates Court without leave.  Accordingly, and with the consent of the parties, this matter is to be treated as an application for leave to appeal.

4                     The procedural history of this case has some importance:

·        On 18 June 2002, the Tribunal affirmed a decision of the delegate refusing the applicant’s application for a protection (class XA) visa.

·        On 6 August 2002, the applicant filed in the High Court a draft order nisi for review of the Tribunal’s decision.  On 7 February 2003, Justice Hayne remitted the matter to the Federal Court.

·        On 13 June 2003, Selway J of this Court, dismissed the application as disclosing no reasonable cause of action.  His Honour held that there was no jurisdictional error in the Tribunal’s decision.

·        On 24 September 2003, the applicant filed in the Federal Magistrates Court a fresh application for review of the Tribunal’s decision.

·        On 15 January 2004, the respondent filed in the Federal Magistrates Court a notice of motion for summary dismissal.

·        On 5 May 2004, the respondent filed in the Federal Magistrates Court a notice of objection to competency based upon s 477(1A) of the Act.  Section 477(1A) provides that an application to the Federal Magistrates Court for judicial review in respect of a privative clause decision under s 483A of the Act must be made within 28 days of the notification of the decision.  The applicant did not make his application to the Federal Magistrates Court within 28 days of notification of the Tribunal’s decision.

·        On 21 June 2004, Driver FM summarily dismissed the applicant’s case as incompetent.  His Honour followed the decision of Selway J.  The effect of Selway J’s decision was that the Tribunal’s decision was a privative clause decision which attracted the application of the s 477(1A) of the Act.

·        On 7 July 2004, the applicant filed a notice of appeal from the decision of Driver FM.

·        On 16 July 2004, the respondent filed a notice of objection to the competency of the appeal.

·        On 27 July 2004, I ordered that the purported notice of appeal be treated as an application for leave to appeal and ordered that the applicant file and serve an amended application for leave to appeal, supporting affidavit and draft notice of appeal by 10 August 2004 and written submissions by 25 August 2004.

·        On 10 August 2004 the applicant filed written submissions.

5                     The Notice of Appeal (which is being treated as the application for leave to appeal)  consisted of two grounds:

‘2.        Federal Magistrate ignore my claim and ground set in my previous case.  In fact R.R.T. decision was wrong and unjustified.

3.         My decision was affected by denial of natural Justice issue.’

6                     The applicant’s written submissions include a section entitled ‘The amended grounds and the decision records made following errors’.  With the consent of the respondent, I have treated that section of the applicant’s submissions as amended grounds of appeal.  Each of those grounds relates to the Tribunal’s decision.  None of the grounds refers to the decision of the Federal Magistrate.

The decision of the Federal Magistrate

7                     In concluding that s 477(1A) of the Act applied to the application, Driver FM held that the Tribunal decision is a privative clause decision.  In coming to that conclusion, his Honour followed the decision of Selway J for the following reasons:

‘While I am not strictly bound by the decision of the Federal Court, I should follow it, unless there is a good reason not to.  The applicant has not advanced any reason for me not to follow the decision of Selway J.  In his oral submissions the applicant has, in effect, asked the Court to show some mercy to him.  He has referred to his difficult financial and personal circumstances.  He is dissatisfied with his legal representation before the Federal Court.  However, he has not sought leave to appeal against the decision of Selway J or otherwise to challenge it.  Nothing said by the applicant gives me any cause to believe that I would reach any different decision than that reached by Selway J.  The effect of the decision in Selway J is that the decision of the RRT is a privative clause decision.’

The application for leave to appeal

8                     The applicant appeared before me unrepresented with the assistance of an interpreter.  A number of matters were raised by the applicant which were not relevant to this application before me, including his present personal circumstances, the current political situation in Sri Lanka and its asserted effect on him if he were to return.  The applicant also claimed that he had personally formed the impression in the hearing before the Federal Magistrate that only the time limit was in issue and that the substantive questions of the decision of Selway J and any jurisdictional error on the part of the Tribunal were not to be addressed.  The applicant provided no evidence in support of this assertion or the formation of such an impression, nor did he point to any action or words on the part of the Federal Magistrate to support the suggestion that such a personal conclusion related in any way to the conduct of that hearing.  Indeed, he informed me, when asked, that he had put forward all relevant matters to the Federal Magistrate and had also made submissions on ‘a humanitarian point of view’.  On the other hand, he also asserted that there were matters that he did not put before the Federal Magistrate.  He conceded that he was given the opportunity to discuss the decisions of Selway J and the Tribunal but said that he was not able to put matters before the Federal Magistrate because of personal difficulties and the fact that he was stressed.

9                     In the hearing before me, I invited the applicant to make submissions as to why the decision of Selway J was wrong, why the Federal Magistrate erred in following the decision of Selway J or why he claims the Tribunal committed error.  Apart from a general reference to his written submissions, the applicant identified two matters.  First, he said that although the Tribunal referred to relocation, it did not consider that relocation would cause him financial hardship.  Secondly, he submitted that pursuant to s 424A of the Act, the Tribunal decision was infected with error.  He gave no particulars of this ground.

10                  The applicant did refer to some alleged problems in giving sufficient instructions to the lawyer who appeared for him before Selway J but there was no evidence and, in any event, there was no suggestion that this affected his Honour’s decision.

The Tribunal’s decision

11                  The Tribunal considered the applicant’s claims that he had a well founded fear of being persecuted for reason of his political opinion.  The Tribunal assessed the applicant’s claims against a backdrop of independent country information.  The Tribunal doubted the genuineness of the applicant’s claims and found that ‘the applicant has exaggerated his claims and is not a credible witness, and I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention’.

12                  Selway J described the reasoning of the Tribunal as “compelling”.  His Honour also observed at [12]:

‘[The conclusion of the Tribunal] seems to me to have been obvious on the material before the Tribunal.  I cannot find that there has been jurisdictional error.  I cannot see that it is arguable that there has been one’.

Consideration

13                  The problem with the first matter raised by the applicant, that the Tribunal did not consider the hardship of relocation, is that the Tribunal made no comment about relocation.  Having rejected the applicant’s claims, relocation was not relevant.  As submitted by Ms Rayment for the respondent, it was a straightforward case of credibility.  The Tribunal expressed its reason for not accepting the applicant in the strongest terms. The second matter, in respect to s 424A of the Act, has not been particularised or identified in any meaningful way. 

14                  Selway J considered whether there had been a breach of the rules of procedural fairness and concluded that this aspect of the applicant’s case could not succeed.  Nothing has been put by the applicant in his written submissions or in his presentation to me to cast any doubt on his Honour’s conclusion that there was no jurisdictional error on the part of the Tribunal. None is apparent.

15                  No error has been demonstrated on the part of the Federal Magistrate in following the decision of Selway J nor was any reason advanced as to why that decision was wrong.  Accordingly, the Federal Magistrate was not in error in finding that he had no jurisdiction, as the application before him was filed after the time prescribed in s 477(1A) of the Act.

16                  I conclude that the decision of Driver FM is not attended by any doubt.  No injustice has been demonstrated if leave to appeal is refused.  The proposed appeal does not possess any, let alone sufficient, prospects of success.  In my opinion, leave to appeal ought not be granted to the applicant.

17                  The respondent seeks an order for indemnity costs.  The evidence is that the respondent’s costs are in excess of $2000.  The respondent seeks costs in the amount of $2000.  It seems to me, in view of the history of this matter, the fact that no matter of substance was raised before me and the fact that the grounds raised were either inapplicable or not particularised, such an order is appropriate.

18                  The respondent also seeks an order in the following terms:

‘No further application by the applicant to review the decision of the Tribunal dated 18 June 2002 shall be accepted for filing, except by leave of the Court.’

With regard to the history of this matter, it is appropriate to make that order.

Associate:

Dated:              14 September 2004

Applicant appeared in person assisted by an interpreter