SZCWS v Minister for Immigration and Multicultural Affairs

[2006] FCA 1145

FEDERAL COURT OF AUSTRALIA

SZCWS v Minister for Immigration & Multicultural Affairs [2006] FCA 1145

SZCWS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1240 OF 2006

JACOBSON J
17 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1240 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWS
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	17 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Applicant pay the First Respondent’s costs of the application

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 1240 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWS
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	17 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 5 June 2006 Federal Magistrate Nicholls summarily dismissed the applicant’s application for review of a decision of a delegate of the Minister.  The delegate refused to grant the applicant a protection visa.  That decision was affirmed by the Refugee Review Tribunal in a decision handed down on 14 January 2003. 

2. The proceeding before Federal Magistrate Nicholls was the sixth occasion on which the applicant had brought the Minister before the courts seeking to challenge the refusal of the Minister to grant the applicant a protection visa. 

3. The first five occasions involved challenges to the decision of the RRT.  Federal Magistrate Nicholls found that there was no jurisdictional error in the decision of the delegate, and that even if there was, it was “cured” by the decision of the RRT in accordance with well established principles of administrative law.  The learned Federal Magistrate also found that the challenge to the delegate’s decision was obviously untenable and constituted an abuse of process.  Notwithstanding this, the applicant now seeks leave to appeal from the decision of the Federal Magistrate.

4. The principles upon which leave to appeal may be granted are well established and it is unnecessary to repeat them; see Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397.

5. The learned Federal Magistrate, in a lengthy and detailed judgment, dealt with every argument that was put before him. He rejected the attack made on the delegate’s decision by Dr Azzi, who appeared on behalf of the applicant, as a “somewhat selective” reading of the delegate’s decision; see [13].

6. His Honour referred at [17] to [19] to the authorities which have considered the circumstances in which a delegate’s decision is cured by a subsequent merits review.  The authorities included a decision of a Full Court in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495. The decision of the majority of the court in that case has been followed by other full courts.

7. The learned Federal Magistrate found that the applicant had taken up the opportunity given to him by the Migration Act 1958 (Cth) to obtain merits review of the decision of the delegate. The effect of his Honour’s finding was that the decision of the RRT superseded the decision of the delegate and that it was no longer open to the applicant to seek to have it reviewed. That is the effect of the statutory scheme contained in Part 7 of the Act; see especially ss 414 and 415. The fact that the applicant in the present case failed to attend before the RRT when given the opportunity to do so does not affect this conclusion.

8. In forming the view that the proceeding constituted an abuse of process the learned Federal Magistrate pointed to the hopelessness of the application and its prior history. The history is set out at [37] of the decision.  It includes a finding made by Stone J in 2004 that the application to review the decision of the RRT was an abuse of process.  Special leave to appeal from her Honour’s decision was refused by the High Court in May 2005. 

9. The applicant appeared before me this morning without legal representation.  He was assisted by a Bengali interpreter.  He handed to me written submissions in which he said that it is not true that he has failed to show interest in the court proceedings.  He stated in the submission that this is because he has been ill and he tendered without objection some medical records in support of the submission.  However, he accepts as correct the submission made by the solicitor for the Minister that this issue was not raised before Federal Magistrate Nicholls and that no medical evidence was tendered before the Federal Magistrate. 

10. The balance of the submission takes issue with the Federal Magistrate’s finding that the proceeding was vexatious.  The submission also contends that both the decision of the delegate and the RRT were wrong.  However, nothing has been put before me to show any doubt as to the correctness of the decision made by Federal Magistrate Nicholls. 

11. I have taken into account the fact that the applicant is not legally represented, nonetheless I am satisfied that there is no basis whatsoever for the grant of leave to appeal.  I will therefore order that the application for leave to appeal be refused and I order the applicant to pay the costs of the first respondent of this application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.

Associate:

Dated:        17 August 2006

The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 August 2006
Date of Judgment:	17 August 2006