SZDNU v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1633

FEDERAL COURT OF AUSTRALIA

SZDNU v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1633

SZDNU v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

NSD 1557 of 2004

LINDGREN J
8 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1557 OF 2004

BETWEEN:	SZDNU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	8 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant 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	NSD 1557 OF 2004

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

JUDGE:	LINDGREN J
DATE:	8 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time in which to file and serve a notice of appeal from a judgment of Smith FM in the Federal Magistrates Court of Australia (‘FMCA’) given on 27 September 2004.  This proceeding was commenced on 27 October 2004 and the period of 21 days from 27 September 2004 in which the applicant could have exercised his right of appeal expired on 18 October 2004.  I am not satisfied that the applicant has explained his delay of nine days but this is the least of his difficulties.

2. The applicant has supplied a draft notice of appeal which reads as follows:

   ‘The Federal Magistrates Court in his Honour’s judgment delivered on 27/09/04 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.’

3. I will give a chronological outline of the facts, but indicate immediately that no arguable ground of appeal is revealed by the applicant and for this reason he should not have an extension of time. In support, I adopt the reasoning of Smith FM in the FMCA and will not set out any part of his Honour’s reasons here: they are available at [2002] FMCA 884.

4. On 20 February 1999 the applicant, a citizen of Bangladesh, arrived in Australia.  On 17 March 1999 he lodged an application for a protection visa.  On 5 May 1999 a delegate of the respondent Minister refused to grant the protection visa.  On 24 May 1999 the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (RRT).  On 9 November 2001 the applicant attended a hearing before the RRT, aided by an interpreter.  On 11 December 2001 the RRT made its decision affirming the delegate’s decision and on 9 January 2002 handed down that decision.  The presiding member’s conclusions were based on an assessment of the applicant’s credibility.

5. On 1 February 2002 the applicant filed an application in this Court (NG 71/2002) applying for review of the RRT’s decision.  The form of application confused the statement of reasons as to why the applicant was aggrieved by the RRT’s decision with a statement of the grounds of the application. 

6. On 11 April 2002 Hely J dismissed the application on the basis that no reviewable error was shown and that the applicant was merely seeking a review on the merits.  His Honour referred to a written submission of the applicant’s of some six pages in length which impermissibly invited the Court to ‘engage in a merits review of the RRT’s decision’ (at [4]).

7. On 30 April 2002 the applicant filed a notice of appeal from Hely J’s order of dismissal, stating that he was not satisfied with his Honour’s judgment, that he had established his case before Hely J, and that he would ‘submit further grounds of … appeal’.  The applicant did not ‘submit further grounds of … appeal’ and did not provide any written submission in support of his appeal from Hely J’s order of dismissal.  On 6 November 2002 a Full Court dismissed his appeal.

8. On 2 December 2002 the applicant filed an application for special leave to appeal to the High Court of Australia (N 441/2002).

9. On 21 July 2002, the Deputy Registrar of the High Court certified that the applicant had failed to comply with O 69A r 10(9) of the High Court Rules on or before 16 July 2003, and that, accordingly, pursuant to O 69A r 13(1), the application for special leave to appeal was deemed abandoned.

10. On 31 July 2003 the applicant filed a further application for special leave to appeal to the High Court (S 440/2003).

11. On 3 February 2004 a Deputy Registrar of the High Court certified that the applicant had failed to comply with O 69A r 6(1) of the High Court Rules on or before 2 February 2004, and that, accordingly, pursuant to O 69A r 13(1), the application for special leave was deemed abandoned.

12. On 24 February 2004 McHugh J ordered the Registrar of the High Court not to accept from the applicant any further process for filing without leave of a Justice of the High Court.

13. On 2 March 2004 the applicant filed in the High Court an ex parte application for leave to issue a further proceeding (S 61/2004).

14. On 11 May 2004 the applicant commenced proceeding SZ 1383/2004 in the FMCA.

15. On 7 June 2004, Clayton Utz, the solicitors for the Minister, wrote to the applicant indicating that in the light of the numerous applications made by him, and given the application then currently before the High Court, they were instructed to seek summary dismissal of the application in the FMCA on the basis that it was an abuse of process.

16. In response, on 25 June 2004 the applicant filed a document headed ‘Applicant’s Argument for Competency’ in the FMCA proceeding.  It included a statement:

    ‘I informed the High Court Registry that the application is not currently pending.’

    Apparently the applicant was referring to High Court proceeding s 61/2004.

17. On 27 September 2004 in the FMCA Smith FM dismissed summarily as an abuse of process the applicant’s proceeding in that Court. That is the order of dismissal against which the applicant now wishes to appeal.

18. Remarkably, notwithstanding that dismissal, on 27 September 2004, two days later on 29 September 2004 the applicant managed to file an amended application in proceeding SZ 1383/2004 in the FMCA.

19. On 18 November 2004 the applicant filed in this proceeding a submission of some six pages in support of his application for an extension of time.

20. On the hearing before me on 24 November 2004, the applicant appeared unrepresented but aided by an interpreter.  Smith FM’s reasons for decision were not then available in written form.  They became available subsequently and the parties had the opportunity of making submissions in respect of them.  The applicant did not do so and I did not call on the solicitor for the respondent, when the proceeding was listed on 8 December 2004.

21. The applicant has no prospects of success for all the reasons that Hely J, the Full Court and now Smith FM have given.  An appeal, in addition to being a hopeless attempt to achieve a further review on the merits, would be an abuse of process defeated by the principles known as res judicata and issue estoppel and the principles referred to in Port of Melbourne Authority v Anschun Pty Ltd (1981) 147 CLR 589: cf Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 at [38] et seq; and on appeal at [2004] FCAFC 242 at [36] – [39].

22. The application for extension of time will be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  14 December 2004

The applicant appeared in person.
Solicitor for the respondent:	Ms S Burnett of Clayton Utz
Date of Hearing:	24 November 2004
Date of Judgment:	8 December 2004