SZDVN v Minister for Immigration and Citizenship

[2007] FCA 1262

FEDERAL COURT OF AUSTRALIA

SZDVN v Minister for Immigration & Citizenship [2007] FCA 1262

SZDVN v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR

NSD811 OF 2007

EMMETT J

7 AUGUST 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD811 OF 2007

BETWEEN:

SZDVN
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs in the sum of $1200.

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	NSD811 OF 2007

BETWEEN:

SZDVN
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

7 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant was born in Nepal and arrived in Australia on 24 September 2003.  On 20 October 2003, he lodged an application for a protection visa. On 4 November 2003, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), decided to refuse the grant of a protection visa. On 24 November 2003 the applicant lodged with the second respondent, the Refugee Review Tribunal (the Tribunal), an application for review of the delegate’s decision.  On 30 April 2004 the Tribunal affirmed the delegate’s decision.  The applicant was notified of the Tribunal’s decision on 25 May 2004.  On 16 June 2004, he applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  On 29 April 2005 the Federal Magistrates Court dismissed the application with costs. 

2. The applicant filed a notice of appeal to the Federal Court of Australia on 17 May 2005.  The appeal was dismissed with costs on 22 July 2005.  The applicant applied to the High Court for special leave to appeal from orders of this court on 15 August 2005.  The application for special leave was refused on 15 December 2005.  However, on 7 December 2006 the applicant lodged a further application to the Tribunal for review of the delegate’s decision.  On 2 February 2007 the Tribunal found that it had no jurisdiction to entertain the application for review, since the Tribunal had already, on 30 April 2004, made a decision affirming the delegate’s decision. 

3. On 19 February 2007, the applicant sought judicial review in the Federal Magistrates Court of the Tribunal’s refusal to entertain his further application.  On 2 May 2007 the Federal Magistrates Court dismissed that application summarily and ordered the applicant to pay the Minister’s costs.  On 9 May 2007, the applicant filed in this Court an application for leave to appeal from the orders of the Federal Magistrates Court of 2 May 2007.  That application is before me today. 

4. The grounds of application to the Federal Magistrates Court were:

   “The Tribunal’s decision was in breach of s 416 of the Migration Act 1958 (Cth) and denied my natural justice. This attracts jurisdictional error on the records of its decision.

   Particulars

   (a)the tribunal failed to provide an opportunity to appear before them to explain my new informations and claims,

   (b)the tribunal failed to consider new informations mentioned in my later repeat protection visa review application.”

5. In its reasons of 2 May 2007, the Federal Magistrates Court recounted the history of the dispute and the primary judge observed that the Tribunal rightly indicated that it had no jurisdiction to hear the application because it had already heard an application for review and it was functus officio. 

6. In the application for leave to appeal, assuming leave to appeal is necessary because the orders of the Federal Magistrates Court were interlocutory, the proposed ground of appeal is “the Tribunal made denial of natural justice”.  There are no particulars.  This proceeding is clearly an abuse of process and should not have been brought.  It is quite clear that the application for leave should be refused.  If leave is not required, the appeal should be dismissed as an abuse of process. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:
Dated:        22 August 2007

The Applicant did not appear.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007