SZCWS v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1206

FEDERAL COURT OF AUSTRALIA

SZCWS v Minister for Immigration & Multicultural and Indigenous Affairs

[2004] FCA 1206

SZCWS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1242 OF 2004

STONE J
14 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1242 OF 2004

BETWEEN:	SZCWS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs in the fixed amount of $1,800.

3.The applicant not be permitted to file any further application in relation to the decision of the Refugee Review Tribunal dated 10 December 2002 and handed down on 14 January 2003 without the leave 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	N 1242 OF 2004

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

JUDGE:	STONE J
DATE:	14 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application, filed on 19 August 2004, for leave to appeal from the judgment of Federal Magistrate Raphael delivered on 16 July 2004.  His Honour dismissed the application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) handed down on 14 January 2003.  Pursuant to O 52 r 15(1) of the Federal Court Rules any notice of appeal from that judgment should have been filed by 5 August 2004. 

2. The Federal Magistrate described the background to his orders as follows: 

   ‘This matter comes before me by way of an application by the respondent Minister that the application for judicial review filed on 6 March 2004 be dismissed on the grounds that the proceedings are vexatious or alternatively that they are an abuse of process or alternatively that they are not competent by virtue of being filed some two years after the decision of the Refugee Review Tribunal of 10 December 2002, handed down on 14 January 2003 and therefore in breach of s 477(1A) of the Migration Act 1958 (Cth).

   The applicant did not attend the hearing before the Refugee Review Tribunal but when an adverse decision was given he sought review of that decision from the Federal Court by filing an application number NN98 of 2003 on 10 February 2004.  He did not pursue that application with vigour and in fact he did not appear at two directions hearings.  On 20 March 2003 Allsop J dismissed the application pursuant to Order 10 Rule 3(ii) of the Federal Court Rules 1976.  The applicant sought to appeal from that decision of Allsop J on 1 April 2003 but on 12 May 2003 he filed a notice of discontinuance. 

   Almost a year later on 6 March 2004 the applicant filed this application which the Minister now seeks to have struck out.’ 

3. His Honour accepted the Minister’s submission that the proceedings were an abuse of process and, on that basis, dismissed the application.  The order that the application be dismissed as an abuse of process is an interlocutory order; Tampion v Anderson (1973) 3 ALR 414. As such the applicant requires leave to appeal as well as an extension of time; Federal Court of Australia Act 1976 (Cth) s 24(1A). For present purposes I am prepared to regard the application before me as both an application for an extension of time and an application for leave to appeal.

4. I am satisfied from the evidence the respondent has put before me that the Federal Magistrate’s account of the background to this matter is accurate. His Honour held that the application constituted an abuse of process. In my view the same comment can be made about the present application. The application for leave to appeal attaches a draft notice of appeal. It challenges the decision of the Federal Magistrate on the basis that his Honour ‘failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903’. The notice of appeal then refers to the decision of the High Court of Australia in Muin v Refugee Review Tribunal (2002) 190 ALR 601 and Plaintiff S157 /2002 v Commonwealth of Australia (2003) 211 CLR 476 but makes no attempt to relate those cases to the decision in the applicant’s case.

5. At the hearing the applicant, who appeared for himself with the aid of an interpreter, was not able to provide any explanation for his delay or to identify any ground on which an appeal from the Federal Magistrate’s decision might be based.  His submissions consisted of a plea that the Court give him ‘one more chance’ and references to the difficulties he experienced in acting without legal representation. 

6. Given the history of this matter and the inadequacy of the notice of appeal I have no hesitation in concluding that the application has no prospects of success and that it constitutes an abuse of process.  Since the Tribunal handed down its decision on 14 January 2003 the applicant has had ample opportunities to articulate his claims against the Tribunal and, as the Federal Magistrate observed, the fact that this has not occurred does not seem to be the fault of anyone but himself.  The applicant has not identified any error made by the Tribunal.  Similarly he has not been able to point to any error made by the Federal Magistrate in exercising his discretion to dismiss the proceedings.  On the contrary, in my view, the Federal Magistrate was plainly correct and the present application should be dismissed with costs. 

7. The respondent, focusing on the abuse of process aspect of these proceedings has submitted that the applicant should be ordered to pay indemnity costs in the amount of $2,000.  I am not persuaded that this is an appropriate order in this case.  I am, however, prepared to order that the applicant pay the respondent’s costs in the fixed amount of $1,800.  Furthermore, in order to prevent any more fruitless applications in relation to the Tribunal’s decision I am prepared to order that the applicant not be permitted to file any further application in relation to that decision without the leave of the Court. 

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

Associate:

Dated:             14 September 2004

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 September 2004
Date of Judgment:	14 September 2004