CZAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1669 (18 November 2005)

Last Updated: 7 December 2005

FEDERAL COURT OF AUSTRALIA

CZAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1669

CZAF V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1850 of 2005

JACOBSON J
18 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1850 of 2005

BETWEEN:	CZAF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	18 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for leave to appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1850 of 2005

BETWEEN:	CZAF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	18 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from a judgment and orders of Mowbray FM given on 19 September 2005. Mowbray FM dismissed an application for review of a decision of the Refugee Review Tribunal (‘the RRT’) as ‘incompetent’ on the ground that the application for review was filed more than 28 days after the date of notification of the decision of the RRT as prescribed by s 477(1A) of the Migration Act 1958 (Cth) (‘the Act’). On 30 September 2005 the applicant filed an application for leave to appeal to this Court. The application was accompanied by an affidavit and a draft Notice of Appeal. Leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Mowbray FM are interlocutory.

2 The applicant is a citizen of Bangladesh who claims to have a well founded fear of persecution on political grounds. He claims that he was attacked by members of the Awami League and targeted by Muslim fundamentalists. The applicant also claims to fear retribution from certain members of parliament in Bangladesh. The applicant claims to have been targeted because he is known to have rejected Islam as he entered certain stamps depicting nude people into an exhibition. The stamps were intended to show that Islam stopped people from doing good deeds and should be rejected as a religion.

3 In its decision handed down on 12 December 2002 the RRT affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection visa. The proceeding before Mowbray FM represented the applicant’s second attempt to challenge the decision of the RRT. His Honour recounted the history of the proceedings at [4] to [9] of his reasons for judgment. The first application for review was filed on 8 January 2003 and dismissed on 24 July 2003 by a Federal Magistrate. An appeal to the Federal Court was dismissed by Gyles J on 14 November 2003. And application for special leave to appeal was dismissed by the High Court on 21 April 2005. McHugh and Heydon JJ found that the appeal had no prospects of success.

4 Mowbray FM set out a passage from the transcript of the application for special leave at [9] of his reasons for judgment which read as follows:

‘The Federal Magistrates Court found no jurisdictional error, failure to do substantive justice or procedural unfairness.

The Federal Court dismissed an appeal on the ground that no error in the reasoning of the decision of the Federal Magistrates Court had been demonstrated.

The applicant’s special leave application complained of errors of law, a failure to review the evidence and procedural unfairness. The applicant also relied on Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 190 ALR 601, but did not demonstrate the necessary factual basis.

An appeal has no prospects of success.’

5 Mowbray FM found at [10] of his Honour’s reasons for judgment that the decision of the RRT was a privative clause decision, observing that the Federal Magistrates Court, the Federal Court and the High Court had found that the RRT did not fall into jurisdictional error. His Honour observed that the application filed in the Federal Magistrates Court in May 2005 was made well outside the 28 day time limit permitted by s 477(1A) of the Act. Reference was made to several decisions including SZMBL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 before his Honour concluded that the Court was not competent to hear the application.

6 The applicant's draft Notice of Appeal contains five purported grounds which do not on their face indicate any error in the decision of the RRT or in the judgment of Mowbray FM. The applicant's affidavit does not add anything to the application.

7 The applicant appeared in person this morning. He told me that he had asked Mowbray FM to give him some time to bring documents from Bangladesh. He also told me that he had financial problems and was not able to get the documents quickly from Bangladesh. He requested time today to obtain documents and to retain a barrister.

8 It seems to me that the record of the proceedings as referred to in [4] to [9] of the reasons for judgment of Mowbray FM indicate that even if it were appropriate to consider fresh evidence on an appeal the applicant has had ample opportunity to get such documents. There is nothing in the reasons for judgment of Mowbray FM to indicate that the applicant requested time to obtain documents. Nor is there anything in the applicant's affidavit which addresses that question.

9 The applicant states in [5] of his affidavit that Mowbray FM did not consider his application and that he did not get an opportunity to file written submissions. This paragraph of the affidavit also contains the assertion that Mowbray FM did not consider the applicant’s submission. The statements in [5] of the affidavit are inconsistent with the observations of Mowbray FM in [7] of his reasons for judgment which plainly indicate that his Honour did consider the submissions put by the applicant.

10 The principles upon which leave to appeal is granted are well known. It is unnecessary to repeat them. In my view the decision of Mowbray FM is not attended by sufficient doubt to warrant the grant of leave to appeal. The history of the proceedings, in particular the observations of the High Court on the special leave application, indicates that there would be no injustice in refusing leave to appeal, even supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

11 Accordingly, I order that the application for leave to appeal be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson .

Associate:

Dated: 7 December 2005

	The applicant appeared in person
Counsel for the Respondent:	Mr Sinnadurai
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 November 2005
Date of Judgment:	18 November 2005