SZDYS v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 298

FEDERAL COURT OF AUSTRALIA

SZDYS v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 298

SZDYS AND SZDYT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD366 OF 2006

WILCOX J
23 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD366 OF 2006

BETWEEN:

SZDYS
FIRST APPLICANT

SZDYT
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

23 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs fixed at $300.

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	NSD366 OF 2006

BETWEEN:

SZDYS
FIRST APPLICANT

SZDYT
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	23 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for leave to appeal from a decision of Federal Magistrate Raphael made on 13 February 2006. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) that was made on 30 April 2002. The magistrate’s order was made pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules on the basis that the application constituted an abuse of process. 

2. The history of the matter appears in an affidavit of Andrea Jane Nesbitt dated 24 September 2004, that was filed in the Magistrates Court.  It appears that the Tribunal made its decision without there having been an oral hearing.  This was because the adult applicant (‘the applicant’) failed to attend the hearing that the Tribunal had scheduled and notified to her.  The circumstances are referred to in the Tribunal's reasons for decision.

3. Some six months after the Tribunal’s decision, the applicant filed a writ of summons and statement of claim in the High Court.  A few months later, she discontinued that proceeding.  The applicant then sought judicial review in this Court.  The matter came before Mansfield J.  He directed the filing of an amended application particularising the grounds of review relied upon.  An amended application was filed, but it failed to comply with his Honour's requirements and was dismissed by Selway J on 21 November 2003. 

4. On 29 June 2004, an application for judicial review was filed in the Federal Magistrates Court.  This was the proceeding that was summarily dismissed by Federal Magistrate Raphael and which gives rise to the present application. 

5. In summary, a period of about two years elapsed between the Tribunal's decision and the commencement of the proceeding in the Federal Magistrates Court.  During that time, the applicant instituted two separate proceedings designed to challenge the Tribunal’s decision.  One proceeding was discontinued.  The other was dismissed for failure to comply with the Court’s order.  In each case, the applicant failed to provide any particulars of grounds that might conceivably amount to jurisdictional error.  No such particulars have been provided in connection with the current proceeding.

6. The applicant made clear to me that she feels the Tribunal's decision was wrong; it took too optimistic a view about the current position in her country of nationality.  I have explained to her that this is not a matter the Court is entitled to evaluate.  It is also obvious that the applicant is deeply distressed at the idea of having to leave Australia in the near future, as is proposed by the respondent.  I understand and sympathise with this distress, but there is nothing the Court can do about it. 

7. I have no option but to say the magistrate was correct in the order that he made.  Having regard to the applicant’s delay, and her repeated failure to provide particulars, the proceeding must be regarded as an abuse of process.  The application for leave to appeal must be refused.

8. The application for leave to appeal will be dismissed with costs fixed at $300.

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

Associate:

Dated:             27 March 2006

The Applicants appeared in person.
Solicitor for the First Respondent:	Ms D Watson of Australian Government Solicitor
The Second Respondent filed a submitting Appearance.
Date of Hearing:	23 March 2006
Date of Judgment:	23 March 2006