SZBHO v Minister for Immigration and Multicultural Affairs

[2006] FCA 1081

FEDERAL COURT OF AUSTRALIA

SZBHO v Minister for Immigration and Multicultural Affairs [2006] FCA 1081

SZBHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2636 OF 2005

COWDROY J
16 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2636 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBHO
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	16 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs on an indemnity basis in the sum of $2500.

3.No further application to review the decision of the delegate of the respondent dated 18 February 2002 or for review of the decision of the Refugee Review Tribunal handed down on 25 July 2003 be accepted for filing except with leave of the Court.

4.That the name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.

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 2636 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBHO
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	16 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal the judgment of Scarlett FM given on 8 December 2005. That judgment dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal on the grounds that it was an abuse of process and that the appeal sought to raise issues to which the doctrine of res judicata applied. Since the decision of Scarlett FM was an interlocutory decision, the applicant requires leave to appeal to this Court.

2. The applicant’s application to Scarlett FM sought review of a decision of the Refugee Review Tribunal made on 30 June 2003. In fact, a previous application for review in respect of that decision had been filed with the Federal Magistrates Court on 18 November 2004 and was dismissed by Barnes FM. The applicant appealed the decision of Barnes FM to the Federal Court, and on 8 February 2005 Madgwick J dismissed the appeal. The applicant then sought reinstatement of his appeal in the Federal Court. Madgwick J dismissed that application on 14 April 2005.

3. The applicant then made an application for special leave to appeal to the High Court. On 8 September 2005 his application for special leave was refused. The applicant then filed another application for review in the Federal Magistrates Court on 4 October 2005. That application was dismissed by Scarlett FM, and the present application arises from that decision. The above history is taken from the judgment of Scarlett FM, since the Court does not in these proceedings have other evidence before it.

4. Leave to appeal from an interlocutory decision will not be granted where the appeal is doomed to fail: see SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [11]; Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397. In the present case, Scarlett FM was clearly correct to dismiss the applicant’s application as an abuse of process. The applicant had already had the opportunity to have the merits of his challenge considered when the matter was considered by Barnes FM. His application for review had been dismissed by her Honour. The applicant then proceeded to appeal her Honour’s decision to the pinnacle of the appeal system. All such challenges were dismissed. It was clearly an abuse of the Court’s process for the appellant to then file another application for review in the Federal Magistrates Court. Further, as Scarlett FM found, the doctrine of res judicata applied to the applicant’s second application to the Federal Magistrates Court, and so that court had no jurisdiction to hear the application.

5. The appellant has not appeared at the hearing today. The first respondent has submitted that the application should be dismissed on the basis of the want of prosecution of the matter by the appellant, pursuant to O 35A r 2(1)(f) and 3(1)(a) of the Federal Court Rules. However, I propose to dismiss the application not only on the basis of the appellant’s non-appearance, but also on the Court’s own motion under O 20 r 2(c) of the Federal Court Rules as an abuse of process.

6. The application for leave to appeal should be dismissed. In view of the fact that the application is an abuse of process, I accept the submission of the first respondent that indemnity costs should be ordered. I also propose to make the third order suggested by the first respondent, which will prevent the applicant from filing further applications for review of the Tribunal’s decision without leave of the Court.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        18 August 2006

Counsel for the Applicant:	The appellant did not appear.
Counsel for the Respondent:	Mr R White (solicitor)
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 August 2006
Date of Judgment:	16 August 2006