SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1549

FEDERAL COURT OF AUSTRALIA

SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549

SZCAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1362 OF 2004

WHITLAM J
22 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1362 OF 2004

BETWEEN:	SZCAT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal is refused.
2. The applicant pay the respondent’s costs fixed in the amount of $1850.
3. No further application by the applicant in respect of the decision of the Refugee Review Tribunal handed down on 24 January 2002 be accepted for filing except by leave of a Judge of the Court.

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 1362 OF 2004

BETWEEN:	SZCAT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	22 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court in which Driver FM dismissed as incompetent the applicant’s application under s 39B of the Judiciary Act 1903 for relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’): SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598.

2. The background to the proceeding is set out in the following paragraphs of the respondent’s outline of submissions filed in the Federal Magistrates Court:

   ‘1.The applicant is a citizen of Bangladesh who arrived in Australia on 9 September 1999.  On 14 October 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).

   2.The applicant's protection visa application was refused by a delegate of the respondent on 17 November 1999.  On 23 November 1999 the applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  On 21 December 2001 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  This decision was handed down on 24 January 2002.

   3.On 21 February 2002 the applicant filed an application in the New South Wales District Registry of the Federal Court of Australia (‘the Federal Court’) seeking review of the decision of the Tribunal. This application was brought pursuant to s 39B of the Judiciary Act 1903 (Cth).

   4.The application was heard by Allsop J on 3 June 2002.  On 5 June 2002 his Honour dismissed the application with costs.

   5.On 24 June 2002 a Notice of Appeal from the judgment of Allsop J was filed in the Federal Court.

   6.The appeal was heard by Whitlam, Sackville and Conti JJ on 27 November 2002. The Court gave judgment at the conclusion of the hearing, dismissing the appeal with costs. The Court found (at [19]) that the appellant had not established any jurisdictional error that would attract relief of the kind referred to in s 39B of the Judiciary Act and accordingly it was not necessary to consider the effect of s 474 of the Migration Act 1958 (Cth).

   7.On 20 December 2002 the applicant filed an application for leave to appeal in the High Court of Australia (‘the High Court’) from the judgment of the Full Court.  The application for leave to appeal was listed for hearing on 2 December 2003.

   8.On 28 November 2003, the applicant filed a Notice of Discontinuance in the High Court.  On that same day the applicant filed an application in the Federal Magistrates Court of Australia seeking review of the same decision of the Tribunal.

   9.        On 30 August 2004 the applicant filed an amended application.’

3. The reasons given by Driver FM for his decision are not attended by the slightest doubt and, as the history of the matter shows, no injustice whatsoever will be occasioned if leave is refused.  Accordingly, I make an order to that effect.  I also order that the applicant pay the respondent’s costs fixed in the amount of $1850, and that no further application by the applicant be accepted for filing in respect of the decision of the Refugee Review Tribunal handed down on 24 January 2002 except by leave of a Judge of the Court.

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

Associate:

Dated:             29 November 2004

The applicant appeared in person
Solicitor for the respondent:	Mrs Elizabeth Knight from the Australian Government Solicitor
Date of hearing:	22 October 2004
Date of judgment:	22 October 2004