SZATH v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 554

FEDERAL COURT OF AUSTRALIA

SZATH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 554

SZATH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 191 OF 2006

BLACK CJ
4 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 191 OF 2006

BETWEEN:

SZATH
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 191 OF 2006

BETWEEN:

SZATH
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 another application for leave to appeal from a judgment of a Federal Magistrate dismissing an application for judicial review. 

2. The application before the Federal Magistrate sought judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, made in June 2002, to refuse to grant a protection visa to the applicant.

3. The applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision.  The Tribunal has the task under our system of migration law of examining all the facts of the case and deciding, in the light of those facts, whether or not the applicant is a person for whom Australia has protection obligations under the Refugees Convention.

4. The Tribunal undertook that task, but on 19 May 2003 affirmed the decision of the delegate.  The decision of the Tribunal was unsuccessfully challenged by the applicant in the Federal Magistrates Court.  There was then an application to this Court, which was dismissed, and then an unsuccessful application to the High Court in Australia for special leave to appeal from the Judge of this Court.

5. All those applications having been unsuccessful, the applicant then filed a new application in the Federal Magistrates Court seeking to review the original decision of the delegate, rather than the decision of the Tribunal.  The problem the applicant faces is that the delegate's decision was superseded in effect by the decision of the Tribunal which was the subject of the earlier proceedings. 

6. The present matter came on before the Magistrate on an application by the Minister to dismiss the new claim on several grounds, including that it had no reasonable prospects of success and that it was an abuse of the process of the court because it was essentially an attempt to re-agitate matters that had already been dealt with through the legal process.

7. The Magistrate concluded that this new case was without substance and that it was an abuse of process because it was indeed an attempt to re-litigate the earlier matters. 

8. When the application for leave to appeal came on for hearing before me today, the applicant, who was assisted by an experienced interpreter, again sought to re-agitate the matters that were before the Tribunal.

9. I can understand, as I indicated in an earlier case, why the applicant wishes to take the course he has but it must be made clear that the role of the courts is not to review the merits of the case; that is the role of the Tribunal.  The role of the courts, and it is a very limited role in this type of case, is to determine whether there was jurisdictional error on the part of the delegate or the Tribunal. 

10. That question has been thoroughly canvassed in earlier proceedings and the Magistrate was correct in determining that this new proceeding does not have any prospect of success and is an abuse of the process of the court. 

11. Accordingly, the order must be that leave to appeal be refused.

12. The application for leave to appeal is dismissed with costs, which I fix in the sum of $1000.

I certify that the preceding twelve (12) 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