SZAPF v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 553

FEDERAL COURT OF AUSTRALIA

SZAPF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 553

SZAPF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 9 OF 2006

BLACK CJ
4 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 9 OF 2006

BETWEEN:	SZAPF 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 $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 9 OF 2006

BETWEEN:	SZAPF 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 a decision of the Federal Magistrates Court dismissing an application for judicial review as an abuse of the process of the court.  Such matters cannot be taken further in this Court by way of appeal without leave being obtained because the Magistrate’s decision was interlocutory in character.  Before the Magistrate, the applicant had sought a judicial review of a decision of the delegate of the Minister rejecting his application for a protection visa.

2. The applicant had already sought review of the delegate’s decision before the Refugee Review Tribunal.  All that was long ago, and the Tribunal affirmed the decision of the delegate.  The applicant then sought judicial review of the Tribunal’s decision.  The subsequent course of that proceeding, which failed at every stage up to and including an application for special leave to the High Court, is outlined in the Magistrate’s reasons for decision at [3]-[4]. 

3. All proceedings to challenge the decision of the Tribunal having failed, the applicant sought to challenge the earlier decision of the delegate.  As the magistrate’s reasons at [6] record when the earlier matter was before the High Court, Gummow and Kirby JJ said:

   ‘We have reviewed the applicant’s written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There are no prospects of success in any appeal to this Court from the decision of Moore J.  Accordingly, special leave to appeal is refused.’

4. Following the refusal of special leave to appeal in the High Court, the applicant has sought to, in effect, agitate the matter all over again by challenging the decision of the delegate. However, the applicant’s submissions today were directed to the decision of the Tribunal, rather than to the decision of the delegate, even though the latter is the purported focus of the current proceeding.

5. In his decision, the Federal Magistrate made some observations which I should repeat here. He said, at paragraph [10]:

   ‘I am satisfied that these proceedings should be dismissed… as an abuse of process.  In this instance, as in [an earlier case], there has been the filing of repeated applications with respect to the same subject matter, even though not specifically in relation to the decision of the delegate.  The applicant has had an opportunity in the course of those prior proceedings to raise any complaints regarding the delegate’s decision.  That would have been the appropriate place for such complaints to be raised, but the applicant did not do so.’

6. The Magistrate then dismissed the case, saying that he had sympathy with the applicant’s desire to remain in the country, but concluding that bringing the proceedings was an abuse of process. It was, clearly, open to the Federal Magistrate to make that finding.  In fact, it seems to me to have been inevitable.  There is no reason, in any case, to suppose that the application to challenge the decision of the delegate ever had any prospect of success.  In these circumstances leave to appeal must be refused.

7. The application for leave to appeal is dismissed with costs fixed in the sum of $1000.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:            12 May 2006

The Applicant appeared in person.
Counsel for the Respondent:	K Crawley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 May 2006
Date of Judgment:	4 May 2006