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[2007] FCA 763
Federal Court of Australia
2007-05-18
Moore J, Ryan J
Original judgment source is linked above.
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:
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. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate: Dated: 23 May 2007 The applicant appeared in person
Solicitor for the First Respondent: Australian Government Solicitor
Applicant S1060 of 2003
Minister for Immigration and Citizenship