FEDERAL COURT OF AUSTRALIA

NAPF v Minister for Immigration and Border Protection [2017] FCA 117

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant applies for an extension of time and leave to appeal under r 35.14 of the Federal Court Rules 2011 from a judgment of Judge Cameron, dated 15 February 2008. At that time, Judge Cameron was a Federal Magistrate.

2    In an affidavit sworn by the applicant on 25 October 2016, the only explanation for the delay in challenging Judge Cameron’s decision was “because my application was pending before the Ministerial intervention (sic)” and that the applicant was uninformed about the Ministerial decision during the week commencing 19 October 2016.

Judge Cameron’s decision

3    In the light of its brevity it is convenient to set out the decision in NAPF v Minister for Immigration and Citizenship [2008] FMCA 249 in its entirety:

1    The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 12 December 2007.

2    The applicant has claimed to fear persecution in Bangladesh. The basis of that fear is set out in paragraph 3 of the judgment of Barnes FM in NAPF v Minister for Immigration [2004] FMCA 399. In para.3 her Honour says this:

The applicant claimed to fear persecution by reason of his political opinion or membership of a particular social group in Bangladesh arising from a claim to have been involved in the founding and activities of the Sirajdikhan Humanitarian Organisation. This was described by the applicant as a secular humanitarian organisation founded in January 1990 which comprised nine friends who were committed to social activities and wanted to improve the situation in their village. He claimed that their goal was to encourage women to cast votes properly, and to stop child marriages and polygamy.”

3    The Tribunal concluded that it did not have jurisdiction to entertain the applicant's application for review.

4    The matter is before the Court today on the applicant's application that the respondents show cause why relief should not be granted to the applicant.

5    In the application the following grounds are pleaded:

(1)    The tribunal failed to act according to migration law and regulation.

(2)    The tribunal did not apply the correct laws when consider this matter.

(3)    The tribunal misinterpreted the migration laws.

(4)    The tribunal failed to exercise its jurisdiction under the migration act.

6    Today the applicant also submitted that he had been denied an opportunity to appear before the Tribunal and so alleges breaches of the natural justice provisions in Pt.4 Div.7 of the Migration Act 1958 (“Act”). The first respondent submits that the applicant has no arguable case and, in any event, has brought an application which is an abuse of process.

7    At a hearing to determine whether an order to show cause should be made, the order will not be made and instead the proceedings will be dismissed pursuant to r 44.12 of the Rules of Court if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of the cause of action is clearly demonstrated or the claim is groundless or there is a high degree of certainty about the outcome. Under the Rules of Court the proceedings may also be dismissed if they have no reasonable prospect of success, are frivolous or vexatious or are an abuse of process.

8    From the documents which are in evidence in these proceedings the following chronology of the applicant's pursuit of a protection visa emerges:

a)    On 2 August 2001 the applicant applied for a protection visa;

b)    On 23 November 2001 the Minister's delegate refused that application;

c)    On 11 April 2003 the Tribunal affirmed the decision of the delegate;

d)    On 19 March 2004 Barnes FM dismissed the applicant's application for judicial review of the Tribunal's decision;

e)    On 1 July 2004 Madgwick J dismissed the applicant's appeal from the decision of Barnes FM;

f)    A subsequent application for special leave to appeal to the High Court was deemed to have been abandoned on 4 July 2005;

g)    On 6 October 2005 Scarlett FM dismissed a further application for judicial review of the Tribunal's decision of 11 April 2003;

h)    On 27 March 2007 Moore J dismissed the applicant's appeal from the decision of Scarlett FM;

i)    On 13 November 2007 the applicant made a further application to the Tribunal for review of the delegate's decision;

j)    On 12 December 2007 the Tribunal found that it did not have jurisdiction to entertain that application for review; and

k)    On 8 January 2008 the applicant commenced these proceedings seeking judicial review of the Tribunal's decision signed on 12 December 2007.

9    The basis of the Tribunal's decision that it had no jurisdiction was that it had already discharged its function. In relation to the Tribunal's conclusion that it was functus officio, it is important to keep in mind that the delegate's decision was dated 23 November 2001 and that the Tribunal made its original decision in respect of that decision of the delegate on 11 April 2003. There has been no further decision by a ministerial delegate.

10    That being so, the Tribunal discharged its function when it made its decision of 11 April 2003. Having done so, it does not have jurisdiction to entertain a further application for review of a delegate's decision. The authorities make that clear and have done so for many years: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456, and SZDMO v Minister for Immigration & Multicultural Affairs [2006] FCA 989.

11    Today the applicant also says that the circumstances in Bangladesh have changed. But any change in circumstances asserted by the applicant does not give the Tribunal renewed power to review the original decision of the delegate.

12    In SZASP v Minister for Immigration & Citizenship [2007] FCA 771 Moore J said at [4]:

It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct … The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review.

13    As to the allegations made today arising out of the fact that the Tribunal did not invite the applicant to appear before it before making its decision of 12 December 2007, the natural justice hearing rule requirements codified in the Act by virtue of s 422B of the Act are predicated on the Tribunal having jurisdiction to entertain the application which is before it. I have already found that the Tribunal did not have jurisdiction because it was functus officio. That being so, there was no call for the Tribunal to invite the applicant to appear before it and no jurisdictional error is demonstrated because it did not do so.

14    For all these reasons, it is clear to me that the Tribunal made no jurisdictional error in its finding that it was functus officio or because it did not invite the applicant to attend before it to give evidence and present arguments. Consequently, the application is not arguable.

15    However, regardless of whether the applicant's case is an arguable one or not, there remains the first respondent's submission that the application is an abuse of process. In this regard, I refer again to Moore J's decision in SZASP's case. As the passage already quoted demonstrates, one of the applicants in those proceedings, which involved several applicants, had sought a second Tribunal review in respect of a decision of the Minister's delegate. That is to say, the circumstances in that case were relevantly identical to the circumstances in this case. His Honour found at [22] that such circumstances amounted to an abuse of process.

16    In my view, the applicant does not have an arguable case for the relief claimed and the proceedings are an abuse of the process of the Court. Therefore, although the respondent expressly only seeks dismissal pursuant to r.44.12, because he has also raised the issue of the proceedings being an abuse of process, which I find them to be, the application will be dismissed pursuant to r.13.10.

The draft notice of appeal

4    The draft notice of appeal which is attached to the applicant’s affidavit dated 25 October 2016 in support of his application for an extension of time and leave to appeal is as follows (without alteration):

Grounds of appeal

1.    The judge of the Federal Magistrates Court in his honourable judgement delivered on the 15 February 2008 failed error of law and relief under the judiciary Act. He failed to find that the Refugee Review Tribunal (RRT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.

2.    The Refugee review tribunal's decision was affected by the recent High Court reported decision.

3.    Besides, the Refugee Review Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 13 December 2007 in deciding my protection visa review application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed.

Orders Sought

1.    The application may be heard and the appeal to the Honourable Court be allowed.

2.    That the judgement made by the honourable FM Cameron, given on 15 February 2008 at Sydney Registry, be set aside.

3.    The decision of the Refugee Review Tribunal be quashed and allow applicants to stay in Australia permanently.

4.    An order (or declaration) to redirect the applicants claims to the RRT for further consideration and to advise the Tribunal to make a further consideration according to law and procedure.

5.    An order that no action is taken to remove the applicants from Australia while this appeal is pending.

6.    An order that the respondent will pay appellants cost in this proceeding.

7.    Any further orders that this honourable court may deem appropriate.

Refusal of application for adjournment and summary of applicant’s submissions

5    In his written outline of submissions dated 13 February 2017, the applicant applied to have the hearing adjourned so that he could obtain legal advice. He sought an extension of three months to enable that to occur. He said that he suffered financial hardship and did not have money to engage a barrister but that one of his friends (who was not identified) promised him that he would give him a couple of thousand dollars in May 2017 for that purpose.

6    The Minister opposed an adjournment. I refused the applicant’s adjournment application and said that I would give reasons later. Those reasons relate to the fact that, as the applicant acknowledged, he had known since directions were made on 2 November 2016 that the hearing would proceed at this time. I accept that he has financial difficulties but he has left it too late to apply for an adjournment. The promised financial support referred to in his written submissions lacks particulars and adequate detail. I was unpersuaded that it was in the interests of justice to adjourn the matter, particularly against the background of the fact that the applicant was seeking an extension of time in respect of a decision dated as long ago as 15 February 2008.

Consideration and determination

7    The relevant principles guiding the Court’s consideration of an application for extension of time and leave to appeal are well settled. The applicant needs to provide an acceptable explanation for the delay in commencing the proceedings. The strength of the proposed grounds of appeal is another relevant matter, not only in relation to the application for an extension of time, but also in connection with a related application for leave to appeal (see Décor Corporation Pty Limited v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 and BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [19]).

8    As to the first of those matters, the delay in seeking leave to appeal is almost nine years, which is an unusually long period of time. The only explanation offered by the applicant was that he was awaiting the outcome of a decision on his request for Ministerial intervention. In his affidavit dated 25 October 2016 in support of his extension of time, the applicant said that his appeal was out of time because “my application was pending before the Minister”. He then stated that he would provide more details later.

9    This explanation has been rejected in other cases, even where the delay is not as long as that here (see, for example, MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4] per Davies J), however, each case will necessarily turn on its own facts. In other cases, the decision to seek Ministerial intervention has been regarded as not being consistent with an intention to pursue appeal rights and contest the correctness of the decision of the FCCA (see Vella v Minister for Immigration and Border Protection [2015] HCA 42, and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [24]). In his affidavit, the applicant did not provide an adequate explanation for the very lengthy delay here. Given his status as a litigant in person, I asked him to elaborate upon his affidavit. Through his interpreter, he said that he had sought Ministerial intervention three times and had hoped to get a positive decision from those requests.

10    In the light of the above, I do not accept that the applicant has provided an adequate explanation for the lengthy delay in bringing this proceeding. It may be inferred from the fact that he sought Ministerial intervention on three separate occasions during the nine year period since Judge Cameron published his judgment that the applicant elected to take a cause of action which is inconsistent with an intention to pursue his appeal rights. That is sufficient to dispose of his application but, for completeness, I will now address the issue of the strength of the proposed grounds of appeal.

11    It is notable that each of the three grounds is expressed at a high level of generality. The essence of ground 1 appears to be that Judge Cameron erred by not finding that the Refugee Review Tribunal (RRT) erred in failing to find any evidence in relation to the applicant’s claims for protection. Putting to one side the difficulty in understanding this proposed ground, the fundamental difficulty with it is that the RRT concluded that it did not have jurisdiction to entertain the applicant’s application for review, thus ground 1 is meaningless.

12    As to ground 2, the applicant did not identify the “recent High Court reported decision” to which this ground relates. Accordingly, the strength of this proposed ground cannot be assessed. Nothing in the applicant’s brief outline of written submissions advanced the matter any further.

13    As to ground 3, which claims that the RRT did not follow the proper procedure in arriving at its decision dated 13 December 2007, which decision was to the effect that the RRT lacked jurisdiction, this appears to be a reference to [13] of Judge Cameron’s reasons for judgment. His Honour referred there to the fact that the RRT did not invite the applicant to appear before it when it made its decision on 12 December 2007 that it lacked jurisdiction. Judge Cameron reasoned that the procedural requirements codified in the Migration Act 1958 (Cth) (the Act) were predicated on the RRT having jurisdiction. Further, his Honour reasoned that the RRT did not have jurisdiction because it was functus officio. Accordingly, his Honour concluded that the RRT was not obliged to invite the applicant to appear before it.

14    This appears to suggest that the codified procedures in the Act as it stood in December 2007 had no application where the RRT lacked jurisdiction to entertain an application for review and the RRT could dismiss the application without hearing from the applicant. This view is contestable and, if viewed in isolation, this may have warranted time being extended and a grant of leave to appeal if I was satisfied that the strength of the ground outweighed the delay.

15    However, the matter is not so straightforward. That is because the then Federal Magistrate found that, regardless of whether the applicant had an arguable case in his judicial review application, the application was an abuse of process because the applicant had made a second application to the RRT for a review of the delegate’s decision (see the background of the matters identified in the chronology set out in [8] of Judge Cameron’s reasons for judgment). The basis for the RRT’s ruling on 12 December 2007 that it was functus officio and lacked jurisdiction was as follows. The RRT had previously affirmed the delegate’s decision on 11 April 2003 and after various unsuccessful attempts to have that decision set aside on judicial review, which involved various Courts in the judicial hierarchy, the applicant proceeded on 13 November 2007 to make a further application to the RRT to review the delegate’s decision. Judge Cameron applied Moore J’s decision in SZASP v Minister for Immigration and Citizenship [2007] FCA 771, which held that, in such circumstances, it was correct for the RRT to find that it lacked jurisdiction. Justice Moore found that conduct involving a second attempt to review the same decision amounted to an abuse of the Court’s process. Judge Cameron took a similar view. In my opinion it was reasonably open for him to do so.

16    The applicant does not complain that he was denied procedural fairness in the proceeding before Judge Cameron. It would appear that he had a reasonable opportunity to address his Honour on the issue of abuse of process. The abuse of process ground provides an independent basis for Judge Cameron’s decision. Even if the applicant has an arguable case in respect of his claim that he was denied procedural fairness by the RRT, Judge Cameron’s finding that his review application before the RRT was an abuse of process stands as an independent basis for the decision to dismiss his judicial review application. It is notable that the applicant does not seek to challenge this aspect of Judge Cameron’s decision.

17    There is a claim in the applicant’s written outline of submissions that there was “actual bias” on the part of the RRT. The only matters upon which that serious allegation is made are the claims that the RRT had ignored relevant evidence and made findings in the face of contradicting evidence. Neither of these matters provides a proper basis for such a serious allegation which, objectively viewed, amounts to nothing more than a complaint by the applicant that his case was unsuccessful before the RRT. As I have emphasised above, the RRT did not hear and determine the substance of the applicant’s review application because it found that it lacked jurisdiction to do so.

Conclusion

18    For these reasons, the application for extension of time and leave to appeal should be dismissed and the applicant ordered to pay the first respondent’s costs.

Associate:

Dated:    17 February 2017