SZBVE v Minister for Immigration and Citizenship

[2007] FCA 364

FEDERAL COURT OF AUSTRALIA

SZBVE v Minister for Immigration & Citizenship [2007] FCA 364

SZBVE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2284 OF 2006

BENNETT J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2284 OF 2006

BETWEEN:

SZBVE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

2.The application for leave to appeal is dismissed.

3.The applicant is to pay the first respondent’s costs.

4.Leave is granted to the first respondent to serve documentation in support of any application for fixed costs within three days.

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 2284 OF 2006

BETWEEN:

SZBVE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for leave to appeal from a judgment of Federal Magistrate Raphael (SZBVE v Minister for Immigration & Anor [2006] FMCA 1671). The application before the Federal Magistrate sought to review a decision of a delegate of the Minister and a decision of the Refugee Review Tribunal. The Tribunal decision was dated 12 September 2003 and handed down on 8 October 2003. In that decision, the Tribunal affirmed the Delegate’s decision, dated 5 March 2003, refusing to grant the applicant a protection visa.

2. A separate application for judicial review of the Tribunal’s decision was dismissed by Federal Magistrate Driver on 17 June 2005.  That judgment was the subject of an unsuccessful appeal to this Court and an application for special leave to appeal to the High Court of Australia was dismissed on 3 August 2006.

3. The applicant then filed the further application in the Federal Magistrates Court that gave rise to these proceedings.  Federal Magistrate Raphael ordered that the application be dismissed and that the applicant not be permitted to file any application referable to the decision of the Delegate or the decision of the Tribunal without leave of the Federal Magistrates Court.  

4. His Honour’s reasons for dismissing the application were threefold. First, his Honour found that he had no jurisdiction to review the Delegate’s decision (at [3]). Secondly, his Honour found that the application, in so far as it sought review of the Tribunal’s decision, was filed outside the time limit prescribed by s 477(1) of the Migration Act 1958 (Cth) (‘the Act’) and that the Court had no power to extend time under s 477(2) of the Act (at [4]). Thirdly, his Honour observed that, even if he had jurisdiction to entertain the application, because of the history of the matter he would have exercised his discretion not to grant the relief claimed (at [5]).

5. The applicant appears in this Court in person assisted by an interpreter.  He was unable to provide any basis to support a finding that the Federal Magistrate’s judgment was attended with doubt.  He simply stated, in support of his application, that he will have problems if he goes back to India.  I do not see any error in the reasons of the Federal Magistrate.  There is no sufficient doubt as to his Honour’s decision.  

6. The draft notice of appeal raises a number of grounds by way of assertion without particulars, reference to decisions of the High Court and of this Court without meaningful explanation, reference to a non-existent decision of this Court, an allegation of bad faith without particulars and a seeking of merits review. 

7. The applicant seeks leave to appeal.  Whether or not leave to appeal is necessary, there is no basis on which to conclude that the appeal has any prospect of success.  In addition and taking account of the history of the matter, it has not been established that a substantial injustice will result if leave to appeal is not granted.

8. It follows that the application should be dismissed.  The applicant is to pay the Minister’s costs. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        16 March 2007

The Applicant appeared in person. 

Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007