SZBCF v Minister for Immigration and Multicultural Affairs

[2006] FCA 1581

FEDERAL COURT OF AUSTRALIA

SZBCF v Minister for Immigration and Multicultural Affairs

[2006] FCA 1581

SZBCF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1514 OF 2006

BLACK CJ
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1514 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BLACK CJ
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The respondent’s costs be taxed and paid by the applicant.

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 1514 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BLACK CJ
DATE:	1 NOVEMBER 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 made on 24 July 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal as an abuse of process of the court: SZBCF v MIMA [2006] FMCA 1096. There is no right of appeal from such a decision because it is interlocutory in character. An appeal can only be brought with leave and the applicant now seeks that leave.

2. The decision of the Refugee Review Tribunal was made on 30 June 2003 and reasons were handed down on 25 July 2003.  The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa.  The applicant is a citizen of India who has claimed fear of persecution by reason of his Islamic faith.  His claim before the Tribunal included claims that he had suffered violence and persecution at the hands of Hindu extremists.

3. The Tribunal was not satisfied that Australia owed protection obligations to the applicant.  It found that he had failed to provide adequate support for his claims and that they were inconsistent with independent country information.  It concluded that the applicant had indeed fabricated his claims. 

4. The applicant challenged that decision. He challenged it before the Federal Magistrates Court which in December 2004 dismissed his application for judicial review: [2004] FMCA 1006. He then appealed to the Federal Court where Bennett J dismissed his application in November 2005: [2005] FCA 1719. He then sought special leave to appeal to the High Court of Australia and that leave was refused by Gummow and Heydon JJ in June 2006: [2006] HCATrans 287.

5. A week following the refusal of special leave the applicant, in effect, started all over again.  He filed an application in the Federal Magistrates Court to challenge the same decision of the Tribunal.  The Federal Magistrate noted correctly that, as a consequence of the operation of the provisions of the Migration Litigation Reform Act 2005 (Cth), the application was out of time. The Magistrate also said that the reasons given by the applicant were, and I quote his Honour (at [4]),

   “… not sufficient to show that it would be in the interests of justice to grant an extension of time. Indeed, the application does not appear to show any reasonable cause of action and appears to be an abuse of process, in that it is an attempt to re-litigate a matter that has already been litigated as far as the High Court of Australia.”

6. I have read the decision of the Federal Magistrate who, in my view, had no option but to find that the application should be dismissed as being out of time and that he had no power to grant any extension of time.  The learned Federal Magistrate was also correct in characterising the proceeding as an abuse of the processes of the court. 

7. I have read the documents filed by the applicant in the present proceeding.  They do not challenge the basis of the Federal Magistrate's decision.  Rather, they seek to re-agitate matters that were or might have been raised in the earlier proceedings. 

8. The two central points in this matter are as follows.  First, there is a time limit imposed upon applications such as this and the Federal Magistrate correctly found that the time limit had not been observed and could not be extended.  Second, the law does not permit the same matters to be re-litigated again and again, as the applicant seeks to do. 

9. The inevitable conclusion is that no basis has been shown for leave to appeal being granted.  There being no substance in the case, no justice would result from leave being refused. 

10. Accordingly, I order that the application for leave to appeal be dismissed and that the respondent’s costs be taxed and paid by the applicant.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:             21 November 2006

The Applicant appeared in person.
Counsel for the Respondent:	B Cramer
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 November 2006
Date of Judgment:	21 November 2006