SZAQW v MIMA

[2006] FCA 1332

FEDERAL COURT OF AUSTRALIA

SZAQW v Minister for Immigration and Multicultural Affairs [2006] FCA 1332

SZAQW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD1036 OF 2006

JESSUP J
14 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1036 OF 2006

BETWEEN:	SZAQW 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 $550.00.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1036 OF 2006

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

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

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 8 May 2006 summarily dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 23 March 2006.  The approach which the court should take in the circumstances of an application such as the present is to ask whether the decision below is attended by sufficient doubt to justify its reconsideration on appeal and whether substantial injustice would result if the application were dismissed, assuming the decision below to be wrong.

2. The applicant had applied for a protection visa under the Migration Act 1958 (Cth). That application was rejected by a delegate of the Minister in May 2001. The applicant sought review of that rejection in the Refugee Review Tribunal and there commenced a series of applications in the Federal Magistrates Court, in this court and even in the High Court of Australia.

3. The present proceedings had their origin in a further application which the applicant made in the Refugee Review Tribunal in December 2005.  This application, however, was still an attempt to challenge the delegate’s decision of May 2001.  The Tribunal dismissed the application in March 2006 on the grounds that it did not have jurisdiction.  The applicant challenged that in the proceedings in the Federal Magistrates Court to which the present application for leave relates.

4. The basis upon which the Tribunal held that it did not have jurisdiction to review the decision of the delegate was that the application in that behalf was made outside the time period specified in the legislation.  Furthermore, the Tribunal held that the question of the appropriateness of the delegate’s decision had already been finalised in its earlier decision made in April 2003 to which I have referred. 

5. Of the applicant’s case on judicial review, the Federal Magistrate said:

   “The Tribunal had no option but to find that it had no jurisdiction and no error appears.  It is clear that there is no reasonable basis for the application and that of itself would justify dismissing the application to this court.  The applicant’s case was clearly untenable and so untenable that it could not possibly succeed.  Again, it is clear that these proceedings have been brought for an ulterior purpose.  The application for a review of a spurious application to the Refugee Review Tribunal was clearly brought for the ulterior purpose of extending a bridging visa for the purpose of prolonging the applicant’s stay in Australia.”

   The Federal Magistrate proceeded to dismiss the application as an abuse of process and made an order for indemnity costs against the applicant.

6. In his affidavit sworn on 26 May 2006 in support of the present application, the applicant set out the grounds upon which he supported his application for leave.  He said that the Federal Magistrate dismissed the proceeding which he had brought without allowing him to argue his case.  He said that the Federal Magistrate erred in holding that his application was an abuse of process.  He said that the Federal Magistrate erred in holding that the Tribunal was not in breach of the law in its jurisdictional ruling.

7. The applicant did not file an outline of submissions in this court, and I have not had the benefit of his assistance by way of elaboration on the grounds set out in his affidavit today.  He has not appeared in court today and I have no alternative but to decide the case on the papers, as it were. 

8. I am not persuaded that there is sufficient doubt about the Federal Magistrate’s judgment such as would warrant its reconsideration on appeal.  Indeed, on the facts and circumstances which presented themselves to the Federal Magistrates Court, it seems clear beyond argument that the Magistrate was justified in holding both that the application for judicial review had no prospect of success and also that it constituted an abuse of process. 

9. In the circumstances the order I propose to make is that the application be dismissed. 

I certify that the preceding nine (9) 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:	Mr Zarucki
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 September 2006
Date of Judgment:	14 September 2006