SZDOI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1556

FEDERAL COURT OF AUSTRALIA

SZDOI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1556

SZDOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1343 of 2004

WHITLAM J
23 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1343 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDOI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	23 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellant pay the respondent’s costs of the appeal, including the costs of her motion.

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 1343 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDOI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	23 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to dismiss as incompetent an appeal from a judgment of the Federal Magistrates Court given on 8 September 2004.  The background to that judgment may be briefly traced.  On 18 October 2002 the appellant filed his first application in the Federal Magistrates Court for review of a decision made by the Refugee Review Tribunal (‘the Tribunal’) on 11 September 2002.  On 2 April 2003 Raphael FM dismissed that first application.  On 17 April 2003 the appellant filed a notice of appeal from the judgment of Raphael FM.  That appeal was dismissed by Tamberlin J on 15 October 2003.  An application for special leave to appeal to the High Court from the judgment of Tamberlin J was filed on 5 November 2003, but it was abandoned.

2. On 14 May 2004 the appellant filed a second application in the Federal Magistrates Court seeking to review the same decision of the Tribunal made on 11 September 2002.  In the judgment under appeal Raphael FM dismissed that second application as an abuse of process on the basis of the principles of Anshun estoppel and res judicata: SZDOI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 612. On 15 September 2004 the appellant filed a notice of appeal in this Court purporting to appeal from the judgment of Raphael FM given on 8 September 2004. An order dismissing an application as an abuse process is an interlocutory judgment: Re Luck (2003) 78 ALJR 177. The respondent accordingly submits that the appeal is incompetent because leave to appeal has not been given.

3. The appellant, who appears in person, has today said nothing in support of the competency of his appeal but relied on a written submission signed by him. That submission is in the English language. Although the appellant utilised the services of an interpreter for the conduct of this proceeding, the written submission bears no statement that it has been translated for the appellant. I am not confident that the appellant is the author of the document or that he understands what it purports to say. In any event, the submission cavils with Raphael FM’s first decision made on 2 April 2003 asserting that that proceeding was disposed of without his case being considered, and, more importantly, the submission takes issue with Raphael FM’s later application of the doctrine of issue estoppel and order pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. In terms the appellant says that the second application raised the question of the powers of the respondent to remove him from Australia under s 198(6) of the Migration Act 1958.  Accordingly, he submits that the doctrine of issue estoppel did not arise on the disposition of his case in the Federal Magistrates Court.  In fact, no such question was raised on that application.  Furthermore, a puzzling and nonsensical reference in the written submission to an alleged determination by Emmett J suggests that the submission has been cannibalised from a document used in other proceedings. 

4. There is not the slightest merit in the appellant’s submissions.  He has not applied for leave to appeal and has entirely failed to come to grips with the fact that the judgment from which he purports to appeal is an interlocutory judgment.  Accordingly the respondent’s application must succeed.  The appeal will be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             30 November 2004

Counsel for the Applicant:	The appellant appeared in person
Solicitor for the Respondent:	Ms A L Radich from Blake Dawson Waldron
Date of Hearing:	23 November 2004
Date of Judgment:	23 November 2004