Applicant S1756/03 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 279 (9 March 2005)

Applicant S1756/03 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 279

APPLICANT S1756/03 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1964 of 2004

JACOBSON J
9 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1964 OF 2004

BETWEEN:	APPLICANT S1756/03 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	9 MARCH 2005
WHERE MADE:	SYDNEY

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	N 1964 OF 2004

BETWEEN:	APPLICANT S1756/03 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	9 MARCH 2005
PLACE:	SYDNEY

1. This is an application for leave to appeal against the orders and judgment of Federal Magistrate Mowbray, made on 8 December 2004. On that date the learned magistrate dismissed an application for judicial review of the RRTs decision, dated 4 November 1999, on the ground that it was an abuse of process.

2. The magistrate's order was made pursuant to rule 13.10 of the Federal Magistrates Court Rules. Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Mowbray are interlocutory.

3. The applicant is a citizen of Bangladesh, who arrived in Australia on 23 January 1997. On 11 March 1997 he lodged an application for a protection visa. This was refused by a delegate of the Minister on 7 August 1997 and on 4 November 1999 the RRT affirmed the decision.

4. The applicant claimed to have a well-founded fear of persecution on political grounds. He claimed to have become involved in Freedom Party "central politics", including campaigning against the Awami League during the 1996 parliamentary elections. It is unnecessary to set out any further details which are recorded in the decision of the RRT.

5. The RRT did not find the applicant to be a reliable witness. It found that the applicant's evidence was internally inconsistent, inconsistent with evidence from other sources, and implausible. The RRTs findings were summed at up court book page 184 by stating that overall, whilst it accepted that the applicant was a member of the Freedom Party and involved in party activities, it did not accept that he was targeted by the police or the Awami League prior to his departure from Bangladesh, or that his home and family had been targeted since his departure.

6. The RRT was of the view that the applicant had fabricated these claims in an attempt to create for himself the profile of a refugee. The RRT was not satisfied that the applicant had a well-founded fear or persecution arising out of his political activities. Accordingly, it affirmed the decision of the delegate not to grant him a protection visa.

7. Federal Magistrate Mowbray set out the history of the litigation which has taken place since 1999 in [2] to [8] of his judgment; see [2004] FMCA 1082. He referred to proceedings which were filed in the Federal Court in December 1999. He noted that those proceedings were dismissed by Katz J in the circumstances described in [3].

8. The magistrate noted that at some stage the applicant had become a member of the representative proceedings relating to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. The magistrate referred to orders made by Gaudron J which resulted in separate proceedings being instituted by the applicant in the High Court of Australia by filing a draft order nisi. He noted that the matter was remitted to the Federal Court.

9. The magistrate referred to orders made by Emmett J on 30 April 2004 and he set out a passage from Emmett J’s judgment, which appears at [6] of the decision of the magistrate. It is unnecessary to repeat what is there set out.

10. The learned magistrate referred at [7] to the fact that the proceedings in the Federal Magistrates Court were instituted on 6 May 2004. He referred to orders made requiring the applicant to file and serve an amended application giving particulars of the grounds relied upon by him and any additional affidavit evidence.

11. At [9] of his decision the learned magistrate referred to an amended application which was filed. The effect of what the magistrate said was that the amended application did not disclose any reasonable cause of action and that it was devoid of any particulars. He then referred to the well-known decision of the High Court in Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, and it is unnecessary to repeat what the magistrate said.

12. In [11] the magistrate found that the current application was foredoomed to fail. He said that given the history of the litigation and the time period since the decision of the RRT in November 1999 "...it would be oppressive for the application to be allowed to continue".

13. He said in [12] that he did not accept that over the five year period it would have been impossible for the applicant to properly identify grounds for judicial review of the decision of the RRT.

14. The applicant appears before me this morning. He relied upon an affidavit sworn on 24 December 2004. The affidavit is in the same terms as the grounds provided in the applicant's draft notice of appeal which states that:-

15. The applicant filed written submissions which do nothing more than canvas factual findings of the RRT and make unparticularised assertions of denial of procedural fairness and jurisdictional error.

16. The reasons for the decision of Federal Magistrate Mowbray are dated 8 March 2005 and apparently the applicant received the reasons only today. He asked for further time to prepare his application for leave to appeal. However, the decision of Federal Magistrate Mowbray was handed down on 8 December 2004, it was delivered extempore on that date, the applicant was present in person when the decision was handed down.

17. The decision was an interlocutory decision in the exercise of the magistrate's discretion to dismiss the proceedings as an abuse of process. Mr Markus, for the minister, opposed any adjournment. I refused the adjournment for reasons which are fully set out in the transcript of today's proceedings. It is sufficient to say that in my opinion in all the circumstances the applicant has had more than sufficient time to be able to at least put to me today something to suggest some arguable ground of error on the part of the magistrate or at least some arguable ground for suggesting jurisdictional error in the decision of the RRT.

18. It seems to me that he has had more than sufficient time to do this and although he was unrepresented today he was not able to do so. The fact that he was not legally represented does not persuade me that further time ought to be granted. I note the learned magistrate's observations in [12] of his reasons for decision that he did not accept that given the history of the proceedings it would have been impossible to articulate some ground if one were available.

19. In my view the applicant has not put anything before me to suggest that there are any prospects of disturbing the discretionary judgment of the Federal Magistrate. Since there are no prospects of success on appeal it would be pointless to grant leave to appeal. Accordingly, I will order that the application for leave to appeal be refused.

20. I order pursuant to the rules of court that the costs be fixed in the sum of $600.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the Respondent:	Mr Markus

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	9 March 2005

Date of Judgment:	9 March 2005