SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1880
•9 DECEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1880
SZAQW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2024 OF 2005
GRAHAM J
9 DECEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2024 OF 2005
BETWEEN:
SZAQW
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE OF ORDER:
9 DECEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed.
2. The Applicant pay the Respondent's costs fixed in the agreed sum of $850.
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 2024 OF 2005
BETWEEN:
SZAQW
APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE:
9 DECEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
What is presently before the Court is an application for leave to appeal by the Applicant who is identified for the purposes of these proceedings as SZAQW. The application for leave to appeal relates to a decision of a Federal Magistrate given on 18 October 2005, whereby an application for constitutional writ relief brought by the Applicant on 8 July 2005 was summarily dismissed.
This case is a classic example of one where a person who has applied for a protection visa will not accept that he has had his day in court and has no entitlement to have his case for a protection visa re-determined on the basis that he might hope for a different outcome. It seems to me that this case places a quite unfair burden upon the Australian taxpaying public and is one which should never have been brought to this Court. I will say something more about appropriate remedial action that the authorities may consider necessary shortly.
The Applicant, a citizen of Bangladesh, arrived in Australia in February 2001. On 26 March 2001 he applied for a protection visa which was refused by the Minister's delegate on 15 May 2001. On 17 June 2001 the Applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate's decision. The Tribunal handed down its decision on 29 April 2003, affirming the decision of the Minister's delegate to refuse the grant of a protection visa to the Applicant.
In his submissions before me, when asked in what respect the Federal Magistrate's decision of 18 October 2005 was attended by sufficient doubt to warrant its reconsideration and why substantial injustice would result if leave to appeal from that decision were not granted, the Applicant responded with words to the effect:
"I am talking about the Refugee Review Tribunal decision. The interpreter there didn't properly interpret. I want it sent back to the Refugee Tribunal so that the Refugee Tribunal member can reconsider the matter and I can explain my case properly."
On 23 May 2003 the Applicant filed an application in the Federal Magistrate's Court of Australia seeking relief in respect of the Tribunal's decision. That matter was duly heard and Her Honour dismissed it on 13 February 2004.
On 1 March 2004, the Applicant filed a notice of appeal from the Federal Magistrate’s decision in this Court. That appeal was dismissed on 30 April 2004. On 26 May 2004 and again on 21 February 2005, the Applicant filed applications for special leave to appeal from the decision of the Judge of this Court dismissing the appeal from the decision of the Federal Magistrate in the High Court of Australia. The first such application was deemed abandoned and the second application was refused on 16 June 2005. The Applicant then filed a fresh application for review in respect of the Tribunal's decision in the Federal Magistrate's Court of Australia. That application was filed on 8 July 2005.
On 18 October 2005, that application was summarily dismissed by another Federal Magistrate in accordance with Rule 13.10(c) of the Federal Magistrate's Court Rules. That rule relevantly provides:
“13.10The Court may order that a proceeding be … dismissed generally … if the Court is satisfied that:
…
(c) the proceeding … is an abuse of the process of the Court.”
In a carefully reasoned judgment, the learned Federal Magistrate recited the history of the Applicant's several applications. In paragraph 4 of his Honour's reasons, he observed that the Applicant's claims for protection were thoroughly reviewed by the Tribunal at a hearing and in its reasons. His Honour observed that the Federal Magistrate who dealt with the first application had addressed various submissions made by the Applicant, including complaints that the Tribunal failed to carry out investigations and to have regard to relevant material.
Her Honour had also addressed claims concerning issues of procedural fairness and bias and an argument that there were discrepancies between the tapes of the Tribunal hearing and what was recorded in the Tribunal's reasons. Her Honour had stated in her reasons:
“In conclusion then, the applicant failed because of the view that the Tribunal took of his credibility. Credibility is a matter for the Tribunal par excellence. The findings that the Tribunal made were open to it on the material before it. As the credibility findings were open to the Tribunal, no error is demonstrated in such conclusions.”
When the matter was before this Court on an appeal from the decision of the first Federal Magistrate, the Judge struck out the appeal on the basis that no viable basis for it or for any ground of appeal was disclosed. When the second application for special leave to appeal to the High Court was considered by the Court, Gleeson CJ and Gummow J said:
“We have considered the decisions of the Tribunal and the courts below. The applicant's written case raises no grounds for the grant of special leave. There are no prospects of success in any appeal to this Court from the Federal Court.”
The learned Federal Magistrate, from whose judgment leave to appeal is now sought, referred to issues of res judicata, issue estoppel and Anshun estoppel, the relevant principles in relation to which are to be found in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at paragraphs 36 to 39.
The Applicant has not, in either his application for leave to appeal or in his accompanying affidavit sworn on 25 October 2005 or in his draft notice of appeal, raised any matter demonstrating that the decision of the Federal Magistrate of 18 October 2005 was attended with sufficient doubt to warrant its reconsideration. Further, he has presented nothing in argument to the Court to demonstrate that a substantial injustice would result if leave to appeal were refused.
His Honour's judgment was demonstrably sound, both in terms of legal principle and the conclusions which he reached.
What I have said is sufficient for me to conclude that the application for leave to appeal should be dismissed with costs. However, as I indicated earlier, the matter should not be allowed to rest without making some observation about the circumstances in which this application came to be brought.
The Applicant, who has an ability to express himself in English, has indicated that he has some difficulty in doing so and accordingly has asked to have the benefit of the services of an interpreter from the Bengali language into the English language to assist him in presenting his case today. I would wish to make the observation that the grounds for the present application are those which “appear in the annexed affidavit”, referring to an affidavit of the Applicant sworn on 25 October 2005. The only matter contained in the accompanying affidavit which could possibly answer the description of being a legal ground for the application, is in paragraph 5:
“5.I filed judicial review application before the Federal Magistrates with the new ground and recent High Court decision S157/2002 v Commonwealth. Honourable FM did not consider my application & I did not get an opportunity to file my written submission.”
The Applicant has no idea what this paragraph means and, as I understand it, it bears no relationship to the case which he wishes to advance, namely that the interpreter didn't properly interpret his submission before the Tribunal. The Applicant says that he was assisted in the preparation of the affidavit and the draft notice of appeal by a Dr Zahirul Hoq Mollah of 57 High Street Mascot, who conducts a business described as Dr Mollah Immigration Service from that address (telephone 8338 1113).
I do not know whose signature it is that purports to be that of the witness to the affidavit. I must say that I have reservations about whether the affidavit was ever sworn at all, and I certainly have reservations as to whether the Applicant had the affidavit explained to him in his native tongue before he signed it.
The Applicant showed me a business card for Dr Mollah. He also says that he thinks he is now out of the country. I would strongly recommend to the Respondent Minister that inquiries be made as to the nature of the business activity undertaken by Dr Mollah and the circumstances in which the affidavit of the applicant of 25 October 2005 came to be sworn.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 21 December 2005
The Applicant appeared in person
Solicitor for the Respondent: S Zarucki of Clayton Utz Date of Hearing: 9 December 2005 Date of Judgment: 9 December 2005
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