FEDERAL COURT OF AUSTRALIA

S1914 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 577

S1914 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 2589 of 2005

HEEREY J

3 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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 from a judgment of a Federal Magistrate of 7 December 2005, S1914 of 2003 v Refugee Review Tribunal [2005] FMCA 1954.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal of 19 February 1998, affirming a decision of the delegate of the Minister to refuse to grant a protection visa to the applicant.

2                     The applicant is a national of Bangladesh.  The essence of his claim before the Tribunal was that he feared persecution as he was a Hindu man married to a Muslim woman. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations.  The applicant has challenged the Tribunal decision on two previous occasions in this court. 

3                     On 20 February 2004 Emmett J dismissed an application for orders nisi remitted from the High Court: Applicant S1174 of 2002 v Refugee Review Tribunal (2004) 80 ALD 325.  The applicant sought an extension of time to appeal from the judgment but that was refused by Jacobson J on 4 May 2004:  S1914 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 589.  The applicant subsequently commenced fresh proceedings in the Federal Magistrates Court seeking judicial review of the Tribunal's decision which was dismissed on 22 February 2005: S1914 of 2003 v Minister for Immigration [2005] FMCA 293.

4                     The applicant appealed to this court and on 4 May 2005 Wilcox J dismissed the appeal on the basis that there was no substance in any of the matters raised by the applicant: S1914 of 2003 v Minister for Immigration & Multicultural Affairs [2005] FCA 601.  The applicant unsuccessfully sought special leave to appeal to the High Court.  The applicant then filed a further application for review in the Federal Magistrates Court alleging failure to consider matters, denial of natural justice and bias.

5                     The Federal Magistrate dismissed the present application for review on the ground of Anshun estoppel, that all of the contentions made in the applicant's documents and orally were contentions which, if they had merit, could reasonably have been put forward in his previous proceedings.  Further, the applicant had not pointed to any special circumstance which should allow him to make any new arguments in fresh proceedings. 

6                     The Federal Magistrate also found that the present application would be met with an absolute estoppel by way of issue estoppel arising from the finding of the Federal Magistrate who heard the applicant's previous application and that the Tribunal decision did not reveal any error going to jurisdiction.  As a result the Tribunal’s decision was a privative clause decision from which relief was barred.

7                     In support of the application for leave to appeal before the court today the applicant claimed, amongst other things, that the Tribunal failed to exercise the proper procedure in relation to making its decision, that it failed to consider updated country information put by the applicant and exceeded its jurisdiction by failing to accord procedural fairness as required by s 424A(1) of the Migration Act 1958 (Cth) (the Act).  The applicant also claimed that the Federal Magistrate’s decision was an improper exercise of that court's judicial power, was in breach of natural justice and that he was denied procedural fairness.

8                     In the present proceedings, the applicant was not legally represented but had the assistance of an interpreter.  When invited to put any further submissions to the court he said that when his case was dismissed by the Federal Magistrates Court last time the magistrate did not verify any papers properly.  He said that the Tribunal did not give him a letter before its decision pointing out differences between what he said in the initial interview and the hearing before the Tribunal.  He said he knew some applicants had their cases remitted to the Tribunal, so why not him?  He said that he had received the cassettes from the Tribunal hearing but was unaware that he was required to submit a transcript to the court.

9                     The argument as to lack of notice of the discrepancy between what he said at the hearing and what he said in the initial interview was presumably based on s 424A of the Act but as counsel for the respondent pointed out, that section was introduced on 1 June 1999 and thus after the hearing by the Tribunal.  The other matters are without substance and do not raise any arguable case as verified by the Federal Magistrate.

10                  The decision of the Federal Magistrate was plainly correct for the reasons he gave. The application will be dismissed with costs.

Associate:

Dated: