FEDERAL COURT OF AUSTRALIA

Applicant S1060 of 2003 v Minister for Immigration and Citizenship [2007] FCA 763

APPLICANT S1060/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 319 OF 2007

RYAN J

18 MAY 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The name of the first respondent be changed to the Minister for Immigration and Citizenship.

2.         The application be refused.

3.         The applicant pay the first respondent’s costs of the application.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from orders made by Turner FM on 22 February 2007.  The application before the learned Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 5 December 2006 asserting that the Tribunal’s decision was “in breach of the rule of denial of natural justice”.  Particulars of that ground were that;

‘2.        The Tribunal failed to conduct hearing in this matter. 

3.         The Tribunal accepted my application and failed to offer hearing in my case.’

2                     The applicant is a citizen of Bangladesh.  The essence of his claim for refugee status was that he feared persecution because he had been an active member of the Bangladesh National Party (“the BNP”) and found himself in conflict with the Awami League.  The applicant claims that he was opposed to Muslim fundamentalism and had supported Taslima Nasreem in 1994.

3                     Before the learned Federal Magistrate, the first respondent (“the Minister”) opposed the application for review on the grounds that, in the absence of particulars, the application had not raised an arguable case for the relief claimed.  The applicant had twice previously challenged the decision of the Tribunal to refuse him a protection visa.  On 3 November 2004, Scarlett FM had dismissed his application for judicial review;  see S1060 of 2003 v Minister For Immigration and Multicultural and Indigenous Affairs  [2004] FMCA 832.  On 17 February 2005, Moore J dismissed an appeal from the decision of Scarlett FM;  see S1060 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 196. 

4                     In an affidavit in support of his application for leave to appeal sworn 6 March 2007 the applicant has deposed;

‘1.The Tribunal’s decision was in breach of the rule of denial of natural justice;

2.  The Tribunal failed to conduct hearing in this matter;

3.  The Tribunal accepted my application and failed to offer hearing in my case;

4.  The Federal Magistrate also denied my formal hearing rights and dismissed my case.’

5                     Because the orders of the learned Federal Magistrate were made pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules, those orders were interlocutory, although they had the effect of bringing the particular proceedings to an end.  It follows that the applicant, as the form of his application acknowledges, requires leave to appeal from the orders of 22 February 2007.  The principles governing a grant of leave to appeal have been succinctly stated by a Full Court of this Court in Décor Corporation Pty Limited v Dart Industries Incorporated [1991] 33 FCR 397 where their Honours observed, at 398;

‘The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second "is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.’

6                     In the course of his reasons for the orders of 22 February 2007, the learned Federal Magistrate traced as follows the history of litigation and proceedings in the Tribunal to which the applicant has been a party;

‘2.        The applicant is a national of Bangladesh. He arrived in Australia on 9 August 1996. He lodged an application for a protection visa on 9 October 1996. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 29 April 1997. The applicant applied to the Tribunal for review of that decision on 21 May 1997. The Tribunal affirmed the decision to refuse to grant the applicant a protection visa on 7 December 1998. The applicant applied to the Federal Magistrates Court for review of the Tribunal decision and filed an amended application on 12 October 2004. The Federal Magistrates Court dismissed the application on 3 November 2004. 

3.         The applicant lodged another application for review with the Tribunal on 22 September 2006, seeking a review of the same decision. On 5 December 2006 the Tribunal found that it had no jurisdiction to review that decision again. The Tribunal found:

While changed circumstances can be a basis on which the Minister might permit lodgement of a second protection visa application under s.48B of the Act, it does not provide any legal basis for the Tribunal to accept a second review application, or to reconsider the delegate’s decision: see MIMA v Thiyagarajah (2000) 199 CLR 343 at [30], MIMA v Bhardwaj (2002) 209 CLR 597 at [7].

As the Tribunal has already discharged its functions under the Act to review the delegate’s decision, the application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision.

4.         On 20 December 2006 the applicant filed in this Court an application to review the decision of the Tribunal dated 5 December 2006. The grounds of the application are:

1.         The tribunal’s decision was in breach of the Rule of Denial of Natural Justice.

2.         Particulars:

The tribunal failed to conduct hearing in this matter. The tribunal accepted this application and failed to offer hearing to the applicant.’

7                     His Honour then, correctly in my view, regarded himself as bound by the conclusion reached in a similar case SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989 to hold that the Tribunal on 5 December 2006 no longer had jurisdiction to entertain the applicant’s application for review of the delegate’s decision but was functus officio.  The barrier to a fresh application for review by the Tribunal of the refusal to grant the applicant a protection visa or for judicial review of the Tribunal’s decision is even higher than Turner FM acknowledged.  That is because Moore J had earlier, on 17 February 2005, refused the applicant an extension of time within which to appeal from an order made by another Federal Magistrate on 3 November 2004 dismissing an application for judicial review of an earlier decision of the Tribunal made on 7 December 1998, affirming the delegate’s refusal to grant the applicant a protection visa.

8                     In the course of his reasons for those orders, his Honour, Moore J, in S1060 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 196, summarised the background to the applicant’s claim for relief as follows;

‘5         The applicant claimed to have been a member of the Bangladesh National Party (BNP) since 1988 and to have come into conflict with members of the Awami League.  He claimed to fear persecution, arrest and detention from people associated with the Awami League government if he were to return.  He claimed to fear this because of  his political views opposing government and his support of Taslima Nasreem.  He claimed his close personal connection with the BNP makes him particularly vulnerable at the hands of the present administration.

6          His problems began when the interim government took over the running of Bangladesh prior to the June 1996 elections.  During this time he was involved in “clashes” during demonstrations.  On one occasion, on 12 June 1996, he was involved in a “procession” that passed in front of the Awami League office and they were attacked by Awami League members and there was fighting.  He had no further problems until after the elections when the police came to his house with a warrant for his arrest alleging he and other BNP demonstrators had attacked the Awami League members with hockey sticks and other weapons.  These charges were false.  No one in the demonstration had been armed.  He was not at home when the police came but his father was told the applicant should report to the police on his return.  Afraid of being arrested and detained, the applicant stayed away from his house until he could leave the country. 

7          He also claimed to have opposed fundamentalism and supported Taslima Nasreem in 1994.  He claimed to have read “Shame” by Ms Nasreem and that it was about freedom for women in Bangladesh.  He claimed to have supported Ms Nasreem in various ways, once organising a seminar in 1995 for her attended by people who supported freedom in Bangladesh.  He claimed she had left Bangladesh at the end of 1995.  The applicant feared his support for her would cause conflict with people who wanted to take revenge against him in Bangladesh.’

9                     Moore J went on to analyse the Tribunal’s reasons for declining to impute to the applicant a well-founded fear of persecution for reasons of political opinion.  His Honour then recited that the Federal Magistrates Court, in its reasons of 3 November 2004, had found that the applicant had been unable to make out any of his claims of misapplication of the test for refugee status, non-compliance with s 424A(1) of the Migration Act 1958 (Cth”) (“the Act”), denial of procedural fairness or making a decision with a closed mind.  His Honour therefore concluded;

‘14       In his draft notice of appeal the applicant claims that the Federal Magistrate erred in not finding that the Tribunal failed to take into consideration, or consider "properly", a number of the applicant's claims.  These were that the applicant feared persecution due to his association with the BNP, that the applicant had been in hiding in Bangladesh "after the conviction on a false charge due to his fear of persecution" and that the applicant had been influenced by the threat of harm to obtain a false passport.

15        The applicant also claimed that the Federal Magistrate had erred in not finding that the Tribunal had failed to consider the factual matrix relating to the issue of an arrest warrant and his subsequent conviction on false charges or that the Tribunal did not disclose adverse country information used against the applicant.

16        The applicant also made the serious claim that the Tribunal lacked impartiality and that the Federal Magistrate erred in not finding so.  The applicant claims the Federal Magistrate erred in rejecting the proposition that there had been a denial of procedural fairness or that the Tribunal decision was attended by jurisdictional error.

17        I have read the reasons for judgment of the Federal Magistrate.  I have invited the applicant to identify arguable errors of the Federal Magistrate which might suggest the appeal has some prospects of success.  None were identified.  None were apparent to me.  Even though the delay in filing was not great leave should be refused because there are no real prospects of success in the appeal.

18        I order that the application for an extension of time be dismissed and the applicant pay the Minister's costs fixed in the sum of $650.’

10                  It appears that the applicant subsequently sought the grant of an order nisi in the High Court as a step towards prerogative relief against the Tribunal.  On 24 August 2005, McHugh J dismissed that application as an abuse of process. 

11                  It can be seen from the matters which I have shortly rehearsed that the applicant is quite unable to satisfy the first limb of the test in Décor Corporation Pty Limited v Dart Industries Incorporated 33 FCR 397 because the correctness of the decision of the learned Federal Magistrate is not attended by any doubt at all.  In any event, even supposing that decision to have been wrong, substantial injustice would not result from a refusal of leave because the applicant has had a full hearing before Scarlett FM of the merits of his application for judicial review and a full consideration by Moore J of that earlier decision.  Those proceedings have exhausted the applicant’s rights of appeal. 

12                  On 16 March 2007, Deputy Registrar Farrell directed that the applicant should file and serve written submissions, if any, not less than five clear working days before the hearing date of his application.  No such submissions have been filed, but the applicant on the hearing of his application repeated his contention that the Tribunal had failed correctly to consider his claims and that he wanted it reviewed properly.  He also asserted that present conditions in Bangladesh continued to make it unsafe for him to return there.  However, none of those contentions can be made out or agitated against the background of the earlier proceedings which I have canvassed in these reasons.  Accordingly, the application must be refused with costs.  That will be the order of the Court together with an order changing the name of the Minister to the current designation.

Associate:

Dated:         23 May 2007