SZAJB v Minister for Immigration and Multicultural Affairs

[2006] FCA 1333

FEDERAL COURT OF AUSTRALIA

SZAJB v Minister for Immigration and Multicultural Affairs [2006] FCA 1333

SZAJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD1382 OF 2006

JESSUP J
14 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1382 OF 2006

BETWEEN:	SZAJB Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	14 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, fixed in the sum of $1,400.00.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1382 OF 2006

BETWEEN:	SZAJB Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	JESSUP J
DATE:	14 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 4 July 2006, in which that court summarily dismissed an application filed on 30 March 2006 to review a decision of the Refugee Review Tribunal made on 2 March 2003. 

2. There is something of a background to the applicant’s attempts to secure a protection visa under the provisions of the Migration Act 1958 (Cth) and litigation related thereto. The applicant arrived in Australia in February 2001 and applied for a protection visa. That application was rejected by a delegate of the respondent on 26 April 2001. The applicant applied for a review of that rejection in the Refugee Review Tribunal and the Tribunal made its decision in which it affirmed the decision of the delegate on 2 March 2003.

3. The applicant applied for judicial review pursuant to s 39B of the Judiciary Act 2003 in the Federal Magistrates Court on 11 April 2003.  That court dismissed the application on 20 February 2004.  The applicant then lodged a notice of appeal in this court and that appeal was dismissed by Branson J on 8 June 2004. 

4. The applicant then appears to have sought relief directly from the High Court by way of order nisi under s 75(v) of the Constitution but his application for an order nisi was dismissed by Heydon J on 23 August 2004.

5. The applicant then applied for special leave to appeal from the judgment of Branson J and that application was dismissed by the High Court on 10 March 2006. 

6. On 30 March 2006 the applicant filed a further application for judicial review of the decision of the Tribunal made on 2 March 2003.  That application came before the Federal Magistrates Court and was dismissed by that court on 29 June 2006.  As I indicated at the outset, that dismissal came about by way of the Federal Magistrate upholding a motion by the respondent summarily to dismiss the proceedings on grounds to which I shall presently refer.  It was the judgment of the Federal Magistrate given on 29 June 2006, for which reasons were published on 4 July 2006, which is the subject of the present application for leave to appeal.  

7. The applicant’s application for judicial review in the Federal Magistrates Court was unsuccessful for two reasons:  first, it was out of time; and secondly, the cause of action which it sought to raise was res judicata. 

8. The first aspect arose under s 477 of the Migration Act which relevantly commenced operation on 1 December 2005. Under a combination of that new section and the corresponding transitional provisions in the Migration Litigation Reform Act 2005 (Cth), the applicant had a period of 28 days from 1 December 2005 within which to challenge, by judicial review proceedings, the decision of the Tribunal of March 2003. It was within the discretion of the Federal Magistrate to extend that 28-day period by up to a further 56 days in circumstances referred to in subs (2) of s 477. The first was that an application for such an extension had been made within 84 days of the day upon which the applicant had in fact been notified of the decision sought to be reviewed. As Mr White, who appeared for the respondent, pointed out, the applicant did not satisfy that condition and as the Federal Magistrate pointed out, the application in the Federal Magistrates Court was considerably out of time. Nothing which the applicant has put to me today has provided any sufficient basis to doubt the correctness of the Federal Magistrate’s conclusion in this regard.

9. As to the second basis upon which the application before the Federal Magistrate was dismissed, I agree with him that the jurisdictional challenge which the applicant then sought to make to the decision of the Tribunal in March 2003 had already been made and had been disposed of by a binding judgment in favour of the Minister.  The cause of action embodied in the present application in the Federal Magistrates Court has been determined by the earlier judgment and no longer exists.  Accordingly, this too was a proper basis upon which the application in the present case might have been dismissed.

10. In an application for leave to appeal such as the present, I am obliged to apply the test articulated by the Full Court of the Federal Court in Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. The test has two limbs: first, whether in all the circumstances the decision sought to be appealed from is attended by sufficient doubt to warrant it being reconsidered by the court; and secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

11. In the present case it is clear beyond argument that the judgment of the Federal Magistrate given on 29 June 2006 was correct, and it follows that I have not been persuaded that that judgment was attended by any doubt, much less sufficient doubt to warrant it being reconsidered by the court. 

12. In those circumstances the order which I propose to make is that the application be dismissed. 

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

Associate:
Dated:        16 October 2006

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	A Nanson
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	14 September 2006
Date of Judgment:	14 September 2006