SZEBY v Minister for Immigration and Multicultural Affairs

[2006] FCA 1278

FEDERAL COURT OF AUSTRALIA

SZEBY v Minister for Immigration and Multicultural Affairs [2006] FCA 1278

SZEBY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and ANOR
NSD 750 OF 2006

BLACK CJ
1 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 750 OF 2006

BETWEEN:

SZEBY
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BLACKCJ

DATE OF ORDER:

1 AUGUST 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first 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 750 OF 2006

BETWEEN:

SZEBY 
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BLACK CJ
DATE:	1 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application for leave to appeal from a decision of Driver FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal on the ground that the application was patently incompetent. 

2. The applicant speaks Tamil.  In the hearing before the Federal Magistrate he did not have the benefit of a Tamil interpreter.  The transcript of that hearing is before the Court because it in effect constitutes the reasons for judgment of the Federal Magistrate.  The transcript indicates that the applicant requested a Bengali interpreter but the Federal Magistrate made no finding as to why this occurred.  The Federal Magistrate decided to proceed with the case even without a Tamil interpreter.  It appears that his Honour took the view that the application was so misconceived that it could not possibly operate to the prejudice of the applicant that there was no Tamil-speaking interpreter.  Views may differ as to whether that was the right course to adopt.  The Federal Magistrate evidently took the view that, in all the circumstances, there was no point in granting an adjournment. 

3. The proceeding before the Federal Magistrate was an application for judicial review of a decision of the Tribunal refusing the applicant’s claim for a protection visa.  The decision that was the subject of the application had, however, already been quashed in earlier proceedings brought by this applicant: see NANQ v MIMIA [2003] FMCA 553.Consequent upon the decision in that case the matter was remitted to the Tribunal for reconsideration according to law.  The proceeding that Driver FM dismissed, and which is the subject of the current application for leave to appeal, sought review of a decision that had already been set aside.  It follows that the proceeding was utterly misconceived and doomed to failure. 

4. In case it be thought that the applicant is a victim of some strange mistake and has selected the wrong decision to challenge, in circumstances where perhaps some opportunity should be given to him to make good his mistake, it must be noted that he had, in fact, already sought judicial review of the Tribunal’s second decision, that is to say the decision made after he successfully challenged the first decision.  The course of the proceedings to challenge the second decision involved an unsuccessful application for judicial review before the Federal Magistrates Court: SZEBY v MIMIA [2005] FMCA 884; an unsuccessful appeal to this Court: SZEBY v MIMIA [2005] FCA 1377; and finally an unsuccessful application for leave to appeal to the High Court: SZEBY v MIMIA [2006] HCATrans 34.

5. I have reservations about the applicant not having the benefit of a Tamil interpreter to allow him to explain his case before the Federal Magistrate, but in these circumstances that is not a reason why leave to appeal should be granted.  As I perceive what the applicant has said in writing, and again here today (through the assistance of a very competent interpreter), he has not complained about the fact that he did not have a Tamil interpreter before the Federal Magistrate.

6. The Court will, generally, only grant leave to appeal where two conditions are satisfied.  The first is that there must be sufficient doubt about the correctness of the relevant decision and the second is that the error must be such that a refusal of leave would result in a substantial injustice to the applicant: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.As I have explained, the application for review of a decision that has already been quashed was doomed to failure.  For that reason it cannot be said that refusal to grant leave would result in a substantial injustice being done to the applicant, despite the absence of an interpreter at his earlier hearing.  The order of the Court therefore must be that the application for leave to appeal be dismissed.

7. I should perhaps add that the applicant, through his interpreter, wanted to explain again his concerns for his family if he were forced to return to his homeland.  Although I suspect it is difficult for the applicant to understand, I sought to explain to him during the course of the hearing that the role of the courts is different to that of the Tribunal and that it is not the function of the courts to look into the facts of the case in the way that the Tribunal does.

8. The application for leave to appeal must be dismissed.  I order that the applicant pay the Minister’s costs. 

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

Associate:

Dated: 26 September 2006    

The Applicant appeared in person.
Counsel for the Respondent:	A Radich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 August 2006
Date of Judgment:	1 August 2006