SZAKL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 567

FEDERAL COURT OF AUSTRALIA

SZAKL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 567

SZAKL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 6 OF 2006

BLACK CJ
5 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6 OF 2006

BETWEEN:	SZAKL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BLACK CJ
DATE OF ORDER:	5 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 $1000.00.

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 6 OF 2006

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

JUDGE:	BLACK CJ
DATE:	5 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application for leave to appeal from the decision of a Federal Magistrate dismissing an application for judicial review on the ground that it was an abuse of process of the Federal Magistrates Court. 

2. The applicant needs leave to appeal because such decisions are quite clearly interlocutory in nature and the relevant provisions require leave to be granted before an appeal may proceed.

3. The learned Federal Magistrate gave this matter careful consideration and his reasons for judgment outline the lengthy course that the proceedings have taken. 

4. The applicant applied for a protection visa the grant of which was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.  The applicant sought review of that decision by the Refugee Review Tribunal where he was unsuccessful.   He then commenced proceedings challenging the Tribunal's decision in the Federal Magistrates Court which dismissed the application on the ground that jurisdictional error had not been established.  The applicant appealed that decision to the Federal Court in April 2004 and that appeal was also dismissed.  He then sought special leave to appeal from the High Court of Australia.  Leave was refused. 

5. The learned Magistrate then in his reasons for judgment summarised the matter as follows.  He said at [12]:

   ‘Undaunted by the string of refusals, the applicant filed a fresh application in the Federal Magistrates Court.  He did so on 24 August 2005 and that is the application that is subject to challenge by the notice of motion before me.’ 

6. The Magistrate went on to say at [12]:

   ‘It is clear that this application is no more than an attempt to relitigate matters that have already been well and truly aired in the Federal Magistrates Court and in the Federal Court and, in least in written form, before two learned Justices of the High Court of Australia.’

7. And the Magistrate pointed out that, the matter having been fully litigated, it simply was not open to go through it all again.  The Federal Magistrate was perfectly correct in dismissing the application as an abuse of process of the court.

8. In those circumstances leave to appeal must be refused with costs.  And I add in plain language for those who may have been assisting the applicant in this matter that it is quite wrong to keep on trying to relitigate matters that have already been concluded in this court. In a case like this, the inevitable result is that the attempt will simply be dismissed with costs. 

9. So the order of the court will be that the application for leave to appeal is dismissed with costs.  In the circumstances, I fix the costs in the sum of $1000.

I certify that the preceding nine (9) 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:	Mr Carr
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 May 2006
Date of Judgment:	5 May 2006