FEDERAL COURT OF AUSTRALIA

NAMD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 445

MIGRATION – no point of principle

NAMD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1851 OF 2004

MOORE J

23 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent's costs.

3.      Costs be fixed in the sum of $1000.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal against a judgment of a Federal Magistrate made on 1 December 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal").  On 26 February 2003 the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant the applicant a protection visa. 

2                     The applicant is a citizen of Bangladesh.  He arrived in Australia on 29 July 2000.  He was detained on 1 October 2002.  On 6 December 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 7 January 2003 a delegate of the Minister refused to grant the protection visa and on 16 January 2003 the applicant applied to the Tribunal for review of that decision.

History of proceedings

3                     The applicant sought judicial review of the decision of the Tribunal in this Court by an application filed on 27 March 2003 (NSD395/2003).  That application was dismissed by Allsop J on 18 August 2003.  The applicant filed a notice of appeal against the judgment of Allsop J to the Full Federal Court on 5 September 2003 (NSD1309/2003).  Spender, Hely and Bennett JJ dismissed the appeal on 3 November 2003.  An application for special leave was made to the High Court on 25 November 2003 (S572/2003).  The application was deemed abandoned on 1 June 2004 for failure to comply with the High Court Rules. 

4                     On 21 June 2004 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision (SYG1912/2004).  On 22 October 2004 the respondent filed a notice of objection to competency because the Tribunal's decision was a privative clause decision and the application was out of time.  The Federal Magistrate held that the Federal Court and Full Federal Court had already found the Tribunal decision to be a privative clause decision under s 474 of the Migration Act 1958 (Cth), and as such the issue of whether the Tribunal's decision was a privative clause decision had been conclusively determined.  Therefore, the time limit in s 477 applied.  The application had not been filed within 28 days of the notification of the Tribunal's decision.  Federal Magistrate Nicholls upheld the notice of objection to competency and dismissed the application on 1 December 2004.

Application for leave to appeal and its disposition

5                     The applicant filed an application for leave to appeal in this Court on 9 December 2004.  In an affidavit filed the same day he asserts that the Tribunal denied him procedural fairness and fell into jurisdictional error, "which is not protected from review by the privative clause".  He also asserts that the decision involved an exercise of power so unreasonable that no reasonable person could have so exercised the power and that the Tribunal made an error of law in taking into account an irrelevant consideration and failing to take into account a relevant consideration.  These are not particularised.  The draft notice of appeal is in similar terms.

6                     As noted earlier, there is a history of litigation of the matter in this Court.  Indeed, it was the litigation in this Court that founded the Federal Magistrate's conclusion that the decision of the Tribunal was a privative clause decision and the time limits under s 477 applied and that the application to the Federal Magistrates Court was out of time.

7                     There has been no appearance of the applicant today.  When the application was originally filed on 9 December 2004 the time and date for the hearing were to be advised by the Registry.  By letter dated 23 February 2005 the applicant was notified at the address for service that the matter was listed for hearing this morning.

8                     In view of the fact that there has been no appearance, in my opinion, an order should be made dismissing the application.  I am fortified in doing so by the further notice of the hearing given to the applicant at his address for service by letter dated yesterday from the solicitors acting for the respondent.  In that letter the solicitors forwarded an outline of the respondent's submissions and repeated that the matter was listed for hearing today.  The letter alerted the applicant to the fact that the matter might be dismissed in his absence if he failed to attend and that he might be ordered to pay the respondent's costs.

9                     I order the application be dismissed and the applicant pay the respondent's costs fixed in the sum of $1000.

Associate:

Dated:              19 April 2005