SZACN v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 564

FEDERAL COURT OF AUSTRALIA

SZACN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 564

SZACN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 2630 OF 2005

BLACK CJ
4 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2630 OF 2005

BETWEEN:	SZACN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BLACKCJ
DATE OF ORDER:	4 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for leave to appeal be dismissed.

2.   The applicant pay the first respondent’s costs fixed at $900.00.

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 2630 OF 2005

BETWEEN:	SZACN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BLACKCJ
DATE:	4 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application for leave to appeal from the judgment of a Federal Magistrate dismissing an application for judicial review as an abuse of the process of the court.  The application that the Federal Magistrate dismissed was filed on 11 October 2005 and sought judicial review of a decision made on 30 June 2000 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the applicant a protection visa. 

2. In fact, the applicant had sought review of the Delegate's decision, the same decision that he now seeks to challenge, by the Refugee Review Tribunal which on 21 November 2002 affirmed the delegate's decision.  The applicant then sought judicial review of the decision of the Tribunal and that application was dismissed by the Federal Magistrates Court.  He then appealed to the Federal Court, which dismissed the appeal.

3. The applicant then sought special leave to appeal from the High Court of Australia, where his application was subsequently deemed to have been abandoned.  He then filed a further application for special leave to appeal which was refused by the High Court.  All these proceedings having failed, the applicant started all over again, challenging this time the original decision of the delegate which he had unsuccessfully sought to challenge in the way I have indicated.

4. The subsequent course of the new proceedings is outlined in the reasons for judgment of the Federal Magistrate at [2]. I need not repeat them but note that they involve two separate applications. First, an application filed on 20 June 2005 to challenge the decision of the Tribunal which was dismissed by a Federal Magistrate on 27 July 2005. Leave to appeal to this Court was refused on 19 September 2005. Second, having failed in those proceedings again, the applicant commenced new proceedings on 11 October 2005 which, as I have noted, sought to challenge the anterior decision of the Minister’s delegate.

5. These were the proceedings that the Federal Magistrate dismissed as an abuse of process of the court.  In dismissing the proceedings the Magistrate observed that no case of jurisdictional error on the part of the delegate had been advanced and that what was sought was judicial review of a decision that had already been extensively reviewed by the Tribunal whose decision had been the subject of review in courts, up to and including the High Court where, as the Federal Magistrate put it at [4], "no ground of jurisdictional error on anyone’s part had been established”.

6. In his submissions filed today, the applicant outlined part of the factual background and sought, essentially, to do two things.  First, he wanted to challenge the finding of the Tribunal and secondly, he wanted to make submissions about the problems of a political nature in his home country that he perceived might affect him as an individual.

7. In response to my invitation to make an oral submission he again referred to the political situation in his home country, and said that he was apprehensive about the result of the forthcoming election and the effect of the result on him.  The problem with these submissions is that, from a legal point of view, they are of no consequence in the case before the Court today.

8. I can understand why the applicant says that he wants an order from this Court to prevent him being sent back to his home country, but I must explain, as has no doubt been explained before, that the function of this Court is not like that of the Tribunal.  The function of this Court is, in cases such as these, to consider whether jurisdictional error has been established. 

9. Nowhere in the proceedings is there any suggestion that jurisdictional error has been established.  And in any case, the courts simply do not allow the same issues to be litigated again and again.  The decision of the delegate which the applicant now seeks to challenge has been the subject of the most extensive review proceedings already. 

10. Now, the conclusion in those circumstances must be that the Magistrate was correct in finding this to be a case of abuse of process and dismissing it accordingly.  Nothing said today, or in the appeal papers, casts any doubt on the Magistrate's decision.

11. Whilst I understand that these legal matters may be difficult for those in the applicant’s position to understand, it really must be repeated that the place for all the facts to be gone into is the Tribunal. That having happened, people in the applicant's position must realise that they cannot simply continue repeatedly to challenge the same decision, even if in a slightly different manner each time.  For those reasons, leave to appeal from the Magistrate's decision is refused.

12. The order of the Court is that the application for leave to appeal is dismissed, with costs, which I fix in the sum of $900.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:            15 May 2006

The Applicant appeared in person.
Counsel for the Respondent:	A J Crockett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 2006
Date of Judgment:	4 May 2006