SZBUF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 732

FEDERAL COURT OF AUSTRALIA

SZBUF v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 732

MIGRATION – application for leave to appeal – no issue of principle

SZBUF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 430 OF 2005

CONTI J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 139 OF 2005

BETWEEN:	SZBUF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant to pay the respondent’s costs.

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 139 OF 2005

BETWEEN:	SZBUF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 21 March 2005 the applicant filed an application for leave to appeal from the judgment of the Federal Magistrate given on 28 February 2005. The Federal Magistrate summarily dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 9 October 2003, which upheld the Minister’s delegate’s decision to refuse to the applicant a protection (Class XA) visa. The Federal Magistrate dismissed the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the ground that it did not disclose a reasonable cause of action.

2. In circumstances where the Federal Magistrate’s judgment being purportedly appealed from is interlocutory, rather than final in nature, no appeal exists as of right from that decision:  Federal Court Act 1976 (Cth) ss 24(1A) and 24(1)(d). As recorded above, the applicant has filed an application seeking leave to appeal, which is appropriate having regard to the Federal Magistrate’s evocation of Rule 13.10, which meant that his Honour did not finally determine the legal rights of the parties: Re Luck (2003) 203 ALR 1.

3. The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment ‘in the general run of cases’ were outlined by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431. First, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal. Secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. In his written submissions, counsel for the Minister also referred to the judgment of Hely J in NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 at [12], in which his Honour said:

   ‘In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances.  It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case that there was some purpose in doing so.  In other words he had to show an arguable case that the [Tribunal’s] decision should be quashed on the grounds of jurisdictional error.  The appellant did not do so.’

4. In the Federal Magistrate’s reasons for judgment, the grounds articulated by the applicant in his amended application for review were extracted and considered in light of the Tribunal’s reasons for decision and the other material before his Honour in the court book. The lack of specification and particularisation of those grounds, as well as the absence of any evidence on the face of the aforementioned material to support the applicant’s allegations, led his Honour to conclude that here existed no reasonable basis for the grounds asserted. His Honour addressed in detail the applicant’s claim that the Tribunal had breached s 424A(1) of the Migration Act 1958 (Cth) but found no breach of that provision. Review of the Tribunal’s reasons for decision indicates that the only information relied upon by the Tribunal in reaching its conclusion that the applicant did not have a well-founded fear of persecution by reason of religion in India, was independent country information and negative inferences drawn from the statements of the applicant, both of which fell within the exceptions to s 424A. Although the hearing before the Federal Magistrate was conducted for the most part in the applicant’s absence due to the applicant’s own tardiness, his Honour gave the applicant an opportunity to be heard.

5. Along with the application for leave to appeal, the applicant filed an affidavit which purported to outline a number of grounds of appeal from the Federal Magistrate’s judgement (read literally):

   ‘1.…

   (a)I have valid claims and grounds in my amended application.

   (b)The decision involved an error of law, whether or not the error appears on the seconds of decision.

   (c)[More] ground of the review decision will be submitted after seeking legal advice.

   Unfortunately I was not able to enquire of the applicant as to the particulars of these grounds because he failed to attend today’s hearing.  I observe that nothing postulated in his affidavit differed from those grounds rejected by the Federal Magistrate.

6. Counsel for the Minister submitted that leave to appeal should be refused on the basis that the application does not propose any grounds of review (I read that to be any grounds of substance); further that the applicant has failed to demonstrate that the Federal Magistrate’s decision is attended with sufficient doubt to warrant its reconsideration; and further that the applicant has failed to show that substantial injustice would result if leave were refused; and finally that on the face of the Tribunal decision there is no jurisdictional error.  I adopt those submissions.

7. I therefore dismiss the application for leave to appeal and order the applicant to pay the Minister’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            3 June 2005

The applicant did not appear
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005