SBKC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1906

FEDERAL COURT OF AUSTRALIA

SBKC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1906

SBKC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 286 of 2005

FINN J
ADELAIDE
19 DECEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 286 OF 2005

BETWEEN:	SBKC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	19 DECEMBER 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicant be refused leave to appeal from a judgment of Mansfield J on 30 September 2005. 

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 286 OF 2005

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

JUDGE:	FINN J
DATE:	19 DECEMBER 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. I have already made orders refusing the applicant leave to appeal from a judgment of Mansfield J given on 30 September 2005.  The applicant has failed to attend the hearing of this application notwithstanding he has clearly been provided both with notice of the date and place of hearing and of the submissions that were to be put by the respondent.  He has failed to comply with a direction that he file written submissions.  The Court, in his absence, has proceeded to hear this matter and make the order I noted at the outset.

2. The principles to be applied in determining whether to grant leave to appeal from an interlocutory decision are well established.  The court having regard to whether in all the circumstances the decision is attended by sufficient doubt to warrant it being re-considered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong:  see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

3. On 30 September 2005 his Honour made orders including the following in this, one of many proceedings brought by the applicant in this Court:

   (1)The application of the applicant for an adjournment of the Notice of Motion of the respondent dated 1 September 2005 be refused (that motion was one for summary dismissal of the application).

   (2)The application of 16 August (i.e. the date on which the application giving rise to this appeal was filed) be summarily dismissed.

4. The present application for leave to appeal is against both of the above orders.  By way of background, the applicant is a Nigerian national.  On 22 December 1995 he applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”). His wife and one of his children was also an applicant for a protection visa. That application was refused by a delegate of the respondent on 7 November 1996. The Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the delegate on 19 May 2000. In the interim period, there had been two earlier decisions of the Tribunal affirming the decision of the delegate which had been set aside by the Court for error, and which required in each instance the matter to be reconsidered by the Tribunal.

5. The proceeding giving rise to this appeal was instituted on 16 August 2005, some five years after the Tribunal decision.  It seeks to have the 19 May 2000 decision of the Tribunal quashed for jurisdictional error.  The application does not identify the nature of the jurisdictional error asserted.  The supporting affidavit of the applicant indicates that the jurisdictional error is twofold:

   (1)that the Tribunal had regard to certain information (which I shall call “the information”) about the state of affairs in Nigeria as reported in: 

   (a)the “Economist” on 15 January 2000;

   (b)a book “Freedom of Religion and Belief:  A World Report”, Boyle and Sheen, Routledge, London, 1997; 

   (c)BBC News World Service, 4 April 2000;

   and that the information was not information to which the Tribunal was entitled to have regard because it all related to a period of time after the date of the application for the protection visa;  and

   (2)that the Tribunal did not inform the applicant that it proposed to have regard to the information in deciding the review of the application for the protection visa when it was obliged to do so. 

6. The order for summary dismissal was clearly unexceptionable.  As Mansfield J noted, the first of the above two grounds complains of the Tribunal taking a course which, as a matter of law, it was obliged to take.  As his Honour indicated the Tribunal had to decide the review application on the facts applicable at the date of the Tribunal’s determination of the application rather than at the date of the application itself. 

7. In relation to the second ground, the point raised was plainly an abuse of process.  The 19 May 2000 Tribunal decision was the subject of a judicial review application to this Court.  That application was dismissed, an appeal to the Full Court of this Court was unsuccessful and a special leave application to the High Court was refused. 

8. It is apparent, both in the review decision in first instance and in the special leave application in the High Court, that the point which the applicant now seeks to raise was ventilated and rejected.  In these circumstances Mansfield J was entirely correct with respect in holding that the applicant had no prospect of success. 

9. The motion for an adjournment for the matter was advanced on the basis that the applicant was unprepared to resist the motion for summary dismissal.  A direction was given by his Honour that the applicant file such material as he may be advised in opposition to the dismissal motion.  He filed no such material.  He did provide the letter of a clinical psychologist, which letter in his Honour’s view did not indicate that the applicant was incapable of conducting his proceeding.  A judicial refusal to grant an adjournment is a matter in which courts are particularly reluctant to interfere by way of appeal.  This is such a case.  There is no discernable error in his Honour’s decision.

10. Returning to the present application, the proposed grounds of appeal simply state general propositions which do not in any way illuminate the basis upon which the appellant seeks to appeal.  In light of what I have noted above, neither of the orders appealed from are open to doubt at all.  Given the nature of the appeal and the context of past hearings in which it takes its place, I did not consider substantial injustice would result if leave were refused.  I have also ordered that the applicant pay the respondent’s costs of the application. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             19 December 2005

The Applicant did not appear.
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 December 2005
Date of Judgment:	19 December 2005