SZDMO v Minister for Immigration

[2006] FCA 989

FEDERAL COURT OF AUSTRALIA

SZDMO v Minister for Immigration & Multicultural Affairs
[2006] FCA 989

SZDMO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD 1006 OF 2006

RARES J
11 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1006 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDMO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	11 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

2.        Costs be fixed in the sum of $1,200.00.

3.The applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 16 March 2006 or the decision of the delegate of the respondent dated 13 November 1997 refusing to grant a protection visa without the leave of a Judge 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 1006 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDMO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RARES J
DATE:	11 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This matter was called outside the Court this morning.  There was no appearance by the applicant. I granted leave to the respondent to file in Court the affidavit of Angela Margaret Nanson, affirmed 10 July 2006.  The proceedings purport to be an application for leave to appeal against a decision of the Federal Magistrates Court, given on 27 April 2006 (SZDMO v Minister for Immigration & Anor [2006] FMCA 617).

2. The proceedings before me come after a litigious history of challenges in which the present applicant sought to review the decision of the Refugee Review Tribunal, given on 22 December 1999, affirming a decision of the first respondent to refuse to issue him a protection visa.  The applicant challenged that decision of the Tribunal before Lloyd-Jones FM, who dismissed the application (SZDMO v Minister for Immigration [2004] FMCA 890). The applicant was assisted by a migration adviser called Sirajulh Haque. His Honour was not satisfied that any of the grounds raised in the applicant's amended application, or his written submissions were sustainable on the evidence or the particulars put before him (see [18]). He said he was unable to identify any ground that the Tribunal had committed any jurisdictional error and dismissed the application.

3. He also noted that, although it was not necessary to pursue the line of investigation because of his decision, there had been no explanation given by the applicant as to the reason for delay between the date of the Tribunal's decision and the lodgment of his application for review before the Federal Magistrates Court on that occasion, which had occurred only on 6 May 2004 (see [19]-[20]). 

4. Justice Hill dismissed an appeal from that decision in SZDMO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 384. He said that he was of the view that even if a transcript of the Tribunal's hearing had been accepted into evidence, there was nothing in the transcript that supported an argument that the reasons for the Tribunal were affected by jurisdictional error (see [50]). His Honour said that in his view there had been no denial of procedural fairness to the applicant in that case (see [47]).

5. The applicant then sought special leave to appeal from the High Court and on 10 August 2005 Hayne and Callinan JJ refused special leave (SZDMO v Minister [2005] HCA Trans 588), saying there was no reason to doubt the correctness of the decisions below.

6. The applicant then brought fresh proceedings in the Tribunal which held - indubitably correctly in my view - that it had no jurisdiction in the matter in its decision dated 16 March 2006.  It was functus officio having performed its functions of review under the Migration Act1958 (Cth) (‘the Act’): see Minister for Immigration v Bhardwaj (2002) 209 CLR 597.

7. The application to Driver FM came after Raphael FM had dismissed the initial application for review filed on 19 August 2005.  The initial application had sought review of the decision of the delegate, notified to the applicant on 13 November 1997, which had been the subject of the review by the Tribunal handed down, or dated 22 December 1999.  No appearance had been made before Raphael FM and he dismissed the application before him on that basis.

8. When the matter came before Driver FM, his Honour was reviewing the decision of the Tribunal given on 16 March 2006.  He said that the Tribunal was functus officio.  I agree with that conclusion. Federal Magistrate Driver dismissed the proceedings because the application failed to disclose an arguable case.  I agree.  His Honour's decision is plainly correct.  The proceedings are a plain abuse of the process of the Court.  I order that the application for leave to appeal be dismissed with costs fixed in the sum of $1200.  I order that the applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 16 March 2006 or the decision of the delegate of the respondent dated 13 November 1997 refusing to grant a protection visa without the leave of a judge of this Court.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:             2 August 2006

The Applicant:	No appearance
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 July 2006
Date of Judgment:	11 July 2006