SZBCE v Minister for Immigration and Citizenship

[2007] FCA 454

FEDERAL COURT OF AUSTRALIA

SZBCE v Minister for Immigration and Citizenship [2007] FCA 454

SZBCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 3 OF 2007

MOORE J
27 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 3 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBCE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be refused if leave be necessary.

2.The appeal otherwise be dismissed.

3.The applicant pay the first respondent's costs fixed in the sum of $1000.

4.The name of the first respondent be amended to "Minister for Immigration and Citizenship".

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 3 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBCE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is what purports to be an appeal against a judgment of a Federal Magistrate, of 13 December 2006, dismissing as an abuse of process proceedings commenced in that Court on 3 October 2006 (SZBCE v Minister for Immigration [2006] FMCA 1897). Those proceedings sought to challenge a decision of the Refugee Review Tribunal of 13 September 2006 that it had no jurisdiction to hear an application for review of a decision of a delegate of the Minister of 12 April 2002 refusing the applicant a protection visa. The Tribunal’s decision was made in circumstances where an earlier Tribunal, differently constituted, had affirmed the delegate's decision on 8 July 2003.

2. It is not apparent to me that the Federal Magistrate erred in dismissing the application for the reasons given.  I note that that occurred against a background where the applicant has sought to litigate, in this Court, the Federal Magistrates Court and the High Court, the Tribunal’s decision (SZBCE v Minister for Immigration [2004] FMCA 1017, SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 and SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 818) and in the Federal Magistrates Court and this Court, the delegate’s decision (SZBCE v Minister for Immigration [2005] FMCA 1933, SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 562).

3. The better view is, probably, that the applicant needs leave to appeal from the judgment of the Federal Magistrate of 13 December 2006.  If leave be necessary I refuse leave and otherwise dismiss the appeal and order that the applicant pay the first respondent’s costs.  Additionally, I order that the name of the first respondent be amended to read, “The Minister for Immigration and Citizenship”.  I order the applicant pay the Minister’s costs fixed in the sum of $1000.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 April 2007

The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 March 2007
Date of Judgment:	27 March 2007