SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1746

FEDERAL COURT OF AUSTRALIA

SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1746

MIGRATION – application for leave to appeal from interlocutory judgment – refused – no issue of principle

SZCTT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1216 OF 2004

CONTI J
9 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1216 OF 2004

BETWEEN:	SZCTT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	9 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal dismissed.

2.The applicant pay the respondent’s costs on an indemnity basis fixed in the amount of $1,000.00.

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 1216 OF 2004

BETWEEN:	SZCTT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	9 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application filed 10 August 2004 pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) for leave to appeal from the interlocutory orders and reasons of Federal Magistrate Driver made and given on 9 August 2004, whereby his Honour upheld a notice of objection to competency filed on 8 March 2004 on behalf of the respondent Minister concerning an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 27 May 2002 and handed down on 19 June 2002 (see SZCTT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 498). The notice of objection to competency relied upon s 477(1A) of the Migration Act 1958 (Cth) (‘the Act’) which requires an application for judicial review be filed within 28 days of the date of notification of the relevant tribunal decision. In the present case 18 months had passed between the date of handing down of the Tribunal decision and the application filed in this Court.

2. The applicant’s affidavit in support of his application for leave to appeal sworn 10 August 2004 reads literally as follows:

   ‘1.I am the applicant in this matter.  I came to Australia to save my life because of my well founded religious persecution in Bangladesh.

   2.I lodged my protection visa application with the dimia and upon refusal from DIMIA, I lodged my service with the RRT, FM, FCA, HCA, But they also refuse my claim because my application was not properly argued.

   3.The present application is a new application with new grounds therefore I believe that this application is the correct application for this honourable Court.  The ground of this application is set in details in my notice of appeal.’

3. A draft purported notice of appeal was attached to the applicant’s affidavit and reads literally as follows:

   ‘…

   2.The tribunal member took my hearing and raised various irrelevant questions in relation to my religious persecution in Bangladesh.

   3.The Refugee Review Tribunal’s decision was in breach of section, section 424(1) and section 418(3) of the Migration Act 1958.

   4.The Tribunal member failed to exocise any adverse information in deciding my case.

   5.The Tribunal member failed to follow common law procedural fairness.

   6.I have denied an opportunity to response after the hearing and prior to the honourable member’s decision.’

4. The principles governing the grant or refusal of leave to appeal interlocutory judgments were set down by a Full Court of the Federal Court in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. There the Court adopted the considerations in Neimann v Electronic Industries Ltd [1978] VR 431 as ‘an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought’. Those considerations are:

   (1)whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

   (2)whether substantial injustice would result if leave were refused supposing the decision to be wrong.

   The Full Court emphasised however that these considerations are not exhaustive and that there is an important distinction between an interlocutory decision on a point of practice, in relation to which a ‘tight rein’ should be kept on appeals, and an interlocutory decision which in effect determines substantive rights.

5. There is certainly no question that the first of these two requirements is not met on the present facts.  There was no error on the part of Driver FM in dismissing the applicant’s application for review in circumstances where 18 months had passed between the date of handing down of the Tribunal decision and the application filed in this Court, let alone any doubt of any kind such as to require reconsideration by a Full Court.  This is an area of practice in relation to which a ‘tight rein’ on appeals should be kept and maintained.

6. The question of whether substantial injustice would result if leave were refused, supposing the decision to be wrong should further be answered in the negative.  This particular applicant has had a long and drawn out litigious history.  It is difficult to avoid the inference that the applicant has merely used the judicial process to delay his return to his country of origin.  After the Tribunal’s decision in 2002 referred to above, his appeal to Federal Court was dismissed by Wilcox J on 12 September 2002, followed by the dismissal of his appeal from Wilcox J to the Full Court of the Federal Court on 6 March 2003.  After filing an application for special leave to appeal in the High Court on 31 March 2003, the applicant discontinued proceedings there on 6 February 2004 and sought to re-agitate the Tribunals decision in the form of the proceedings filed in the Federal Magistrate’s Court, from which he now appeals.

7. It is clear that the applicant has exhausted his legal rights, as established at least by the judgments of four judges of this Court.  The application to the Federal Magistrates Court was inferentially an abuse of process, and leave to appeal on the question of competence is of the same character.  I dismiss the application and order indemnity costs fixed in the amount of $1,000.00.

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:             24 December 2004

Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 December 2004
Date of Judgment:	9 December 2004