SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 482

FEDERAL COURT OF AUSTRALIA

SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 482

SZDJA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 142 of 2006

RYAN J
2 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 142 of 2006

BETWEEN:

SZDJA
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

2 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be refused.

2. The applicant pay the respondents costs of this application fixed in the amount of $1,300.

3. The applicant may not institute any proceedings against the Minister for Immigration and Multicultural Affairs and her delegate or the Refugee Review Tribunal in respect of his application for a protection visa without leave of this 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 142 of 2006

BETWEEN:

SZDJA
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	2 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by a Federal Magistrate on 16 January 2006.  The application before the Federal Magistrate sought judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  The decision of the delegate of the Minister was made on 2 May 2000, and that was to refuse to grant a protection visa to the applicant.

2. The applicant subsequently applied to the Refugee Review Tribunal (“the Tribunal”), to review the delegate’s decision, and, on 29 March 2002, the Tribunal affirmed that decision.

3. The applicant is a citizen of India.  The essence of his claim for refugee status was that he feared persecution because he had been a witness to illegal transactions as an employee of the Chief Minister of Tamil Nadu.  He claimed that he had been threatened by the government and by supporters of the opposition party.

4. Before the learned Federal Magistrate, the Minister sought summary dismissal of the application on the basis that it disclosed no reasonable cause of action or that the proceedings were frivolous or vexatious or an abuse of process.  The applicant has twice previously challenged in this Court the refusal to grant him a protection visa.  On 9 February 2004, Emmett J dismissed an application for orders nisi in proceedings entitled S448 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 499. On 16 November 2004, Jacobson J dismissed an appeal from a decision of the Federal Magistrates Court refusing an application for review of the Tribunal’s decision. His Honour’s judgment is recorded as SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1499.

5. The applicant unsuccessfully sought special leave to appeal to the High Court from the judgment of Jacobson J.  The applicant then filed the current application seeking to review the delegate’s decision.

6. The learned Federal Magistrate dismissed the application, indicating that he was satisfied that the bringing of an application to set aside the decision of the delegate where an application had already been made for review by the Tribunal and judicial review had then been sought of the Tribunal’s decision, including an exercise of a right of appeal to this Court, was “an outright abuse” of the processes of the Court.

7. In support of the present application for leave to appeal, the applicant filed an affidavit and draft notice of appeal claiming that the Federal Magistrate had failed to accord him natural justice.  The applicant also claimed that the Tribunal had identified the wrong issue or had relied on irrelevant material or had failed to take into account relevant material.  It was further contended that his Honour had failed to exercise jurisdiction under the Migration Act 1958 (Cth) (“the Act”), or had acted in excess of jurisdiction and had made a decision in bad faith.

8. At the hearing this morning of this application, the applicant pointed out that he has been in Australia and made repeated applications to courts and tribunals over the past four years.  During that time he has been in continuous employment and has paid Australian taxes.  It would be meaningless, he submitted, to require him to make further applications, but it would also be entirely inappropriate to compel him to return to India where, he asserts, he can receive no adequate protection.

9. I have read the reasons given by Raphael FM for the orders which he made, and I have been unable to detect in them any error of principle or any respect in which his Honour’s discretion can be said to have miscarried.  The jurisdiction which the applicant has invoked was one to review the decision of the delegate of the Minister to refuse the grant of a protection visa.  However, as the learned Federal Magistrate pointed out at [4] of his reasons of 16 January 2006, the applicant in his submissions at first instance:

   ‘Did not talk at all about the delegate, referring only to the Tribunal.’

1. It will be a rare case indeed that a delegate of the Minister will be amenable directly to judicial review, because the Act provides an applicant with a full right of review of the delegate’s decision both for error of law and on the merits. No particulars have been given of any failure to accord the applicant natural justice or any manifestation of bad faith in the learned Federal Magistrate’s exercise of discretion.

2. The matters which the applicant urged in his oral submissions this morning command a measure of sympathy, but they are matters for a fresh exercise of discretion by the Minister or the Department if that is available in the present circumstances.  It follows that the appeal must be dismissed with costs.  Mr White of Counsel for the Minister has sought an order that the costs be fixed as between solicitor and client on an indemnity basis.  I consider it appropriate to fix the costs of the appeal in the sum of $1300, which, I assume from what Mr White has said, is likely to approximate nearly enough to a full indemnity.

3. I shall also order, as requested by Counsel for the Minister, that no further application for review of the decision of the delegate dated 2 May 2000 or for review of the decision of the Tribunal be accepted for issue without the leave of the Court.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            3 May 2006.

The Applicant appeared in person.
Counsel for the First Respondent:	Mr R White
Solicitor for the First Respondent:	Spark Helmore
Date of Hearing:	2 May 2006
Date of Judgment:	2 May 2006