SZCXD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 206

FEDERAL COURT OF AUSTRALIA

SZCXD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 206

SZCXD V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1883 of 2004

JACOBSON J
1 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1883 OF 2004

BETWEEN:	SZCXD APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	1 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant is to pay the respondent’s costs.

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 1883 OF 2004

BETWEEN:	SZCXD APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	1 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 17 December 2004 the applicant filed a notice of appeal against the orders of Wilcox J dated 9 December 2004. On that date his Honour dismissed the applicant's proceedings on the ground that it was an abuse of process pursuant to order 20 rule 2(1) of the Federal Court Rules. His Honour's judgment was interlocutory and, accordingly, leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. The principles to be applied were referred to by a Full Court in Decor Corporation Pty Limited v Dart Industries Inc (1991) 3 FCR 397. It is unnecessary to set out the considerations referred to, the principles being well-established. In Brilliant Digital Entertainment v Universal Music Australia Pty Limited [2004] FCAFC 270 at [3] Black CJ and Stone J said that the criteria ought not be applied rigidly or exhaustively but should take into account the circumstances of the particular case.

3. The matter came before Wilcox J by way of an application said to be made under section 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (“RRT”) dated 11 May 2000. The RRT affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection visa.

4. The applicant commenced the present proceedings, that is the proceeding that was heard before Wilcox J, on 8 March 2004 in the Federal Magistrates Court.  Federal Magistrate Driver then transferred the matter to the Federal Court because he considered that it was arguable that the applicant was really seeking an extension of time to appeal against a decision of Emmett J made on 20 February 2004 dismissing the application by the applicant for an order nisi.

5. The background to the applicant's case is usefully set out by Wilcox J at paragraphs 2 to 9 and I will not repeat it; see [2004] FCA 1650. His Honour observed at [11]:

   “Considered as an application under s 39B of the Judiciary Act, it is immediately obvious that the application seeks to replicate the proceeding that was commenced in the High Court and ultimately dismissed on remittal by Emmett J. It is clearly an abuse of process for a person to attempt to re-litigate the same matter by reference to the same cause of action.”

6. Wilcox J stated that if he were to treat the application as one for an extension of time he would need to be persuaded that there was an arguable case that Emmett J erred in refusing to grant an order nisi by way of identifying an arguable basis for the contention that the RRTs decision was infected by jurisdictional error.  He found that nothing was put to him to suggest that this was the case.  The applicant's affidavit did not suggest that there was any jurisdictional error.  His Honour concluded at [13] by stating:

   “It would not be a correct exercise of the Court's discretionary power for me to extend time, in effect, to run an appeal against a decision the correctness of which no arguable case has been identified. 

   Accordingly, I think the respondent's contention that the proceeding is an abuse of process is correct.” 

7. The applicant's notice of appeal states the grounds in the most general terms that the: “Federal Court fell into jurisdictional error and it denied natural justice”.

8. The applicant provided a written outline of submissions in which he said that the RRT did not accept that the applicant left Bangladesh to escape persecution for his political opinion and the RRT refused to accept the applicant's version of events in relation to a political rally.  The applicant submits in the written submission that Wilcox J erred in failing to find that the RRT failed to deal with these claims in its decision.

9. The applicant also refers to the RRTs finding that a charge sheet produced by the applicant was not genuine.  The applicant submits that the RRT did not provide the applicant with an opportunity to rebut the allegation and that he was not given a fair hearing.  The applicant requests in the written submissions that leave to appeal be granted and he states that:

   “I strongly believe that there are few things the Refugee Review Tribunal did not take into consideration about my persecution.  And Justice Wilcox failed to deal with those things.  I also believe that those things are arguable to grant me leave to appeal.”

10. The applicant appeared before me today in person but he relied solely on his written submissions.  In my view the decision of Wilcox J is not attended by any doubt.  His Honour dismissed the proceedings as an abuse of process, the applicant having had the previous application dismissed by a single judge of the court and an application for orders nisi remitted from the High Court was refused by another judge of the court. 

11. The grounds raised by the applicant in his submissions go to findings of fact made by the RRT.  Even if the proceedings had not already been dealt with by Emmett J it would not have been open to the applicant to obtain review on the basis of any of those matters.  It is well-established that the RRT is not bound to accept what the applicant said and it was up to the RRT to decide whether or not to accept his claims; see, e.g. Abebe v The Commonwealth of Australia 197 CLR 510 at [84] and [187].

12. It is also well-established that the question of whether an applicant should be believed on a claim is a finding of credibility for the Tribunal "par excellence"; see Re Minister for Immigrationand Multicultural Affairs ex parte Durairajasingham (1999) 168 ALR 407; 74 ALJR 405 at [67] per McHugh J.

13. Accordingly, the application for leave to appeal is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             9 March 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Bautista
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 March 2005
Date of Judgment:	1 March 2005