SZENK v Minister for Immigration and Multicultural Affairs

[2006] FCA 198

FEDERAL COURT OF AUSTRALIA

SZENK v Minister for Immigration & Multicultural Affairs [2006] FCA 198

SZENK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NSD 2396 of 2005

MADGWICK J
23 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2396 OF 2005

BETWEEN:	SZENK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	23 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed, with costs assessed in the sum of $1,700.

2.The proceedings will be re-entitled by taking out the phrase ‘and Indigenous’.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2396 OF 2005

BETWEEN:	SZENK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	23 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an application for leave to appeal against a decision of the Federal Magistrates Court that refused leave to file an application in that court. The intended application was directed to seeking judicial review of a decision adverse to the applicant made by the Refugee Review Tribunal (‘the Tribunal’) and handed down on 19 December 2002.  The necessity for leave to file the application arose because on 8 March 2005 Rimmer FM made an order that the applicant was not permitted to file any further application in relation to the said decision of the Tribunal in the Federal Magistrates Court without leave of that court. 

2. The learned Federal Magistrate set out the unhappy litigation history of the applicant in relation to that decision and Ms Rayment, who appears for the respondent Minister, has helpfully provided another version of it. The applicant came to Australia on 29 September 2000 and lodged an application for a protection visa three weeks later.  He benefited from his application to the Tribunal being before that Tribunal for two years before it was disposed of.  The matter dealt with by the learned Magistrate was the fourth time the applicant had sought judicial review in respect of that decision.

3. The first set of proceedings was instituted in the Federal Court on 13 January 2003. They were transferred to the Federal Magistrates Court and became proceedings SZ2221 of 2003 in that court.  The application was dismissed.  An appeal from that judgment was dismissed in this court.  Application for special leave to appeal was filed in the High Court and a notice of discontinuance was filed on 27 September 2004. 

4. Nevertheless, less than a fortnight later another application for judicial review was filed in the Federal Magistrates Court.  These proceedings were known as SYG3008 of 2004.  After a Notice of Objection to Competency was filed, the applicant discontinued the proceedings on 9 December 2004 and a few days later was ordered to pay the respondent’s costs. 

5. The day after the notice of discontinuance was filed, the applicant filed another application for judicial review of the same decision.  These proceedings were known in the Federal Magistrates Court as BRG718 of 2004.  The application was dismissed, with costs, by Rimmer FM on 8 March 2005, and applications for leave to appeal, and for special leave to appeal, were respectively rejected by this Court and the High Court. As indicated earlier, Rimmer FM very properly ordered that the applicant not be permitted to file any further application in relation to the Tribunal’s decision without leave of the court.

6. Ten days after the High Court’s rejection of the application for special leave to appeal to it, proceedings out of which this would-be appeal arose, proceedings SYG2521 of 2005, were instituted in the Federal Magistrates Court. 

7. The applicant appears unrepresented. 

8. Lloyd-Jones FM found, among other things, that the effort to bring further proceedings was an abuse of the court’s process, and also made an order declaring the applicant to be a vexatious litigant.

9. The intended notice of appeal asserts supposed errors by the Federal Magistrate in not finding various alleged errors on the part of the Tribunal.  It does not deal in any way, shape, or form with why the applicant should be permitted to vex the first respondent with yet another attack on the Tribunal’s decision.  As for the errors that are alleged, as Ms Rayment puts it, the draft notice of appeal ‘pleads bland and unparticularised grounds’ and also, ‘raises allegations that essentially attempt to attack the findings of fact made by the Tribunal and seeks impermissible merits review’. Nothing in the accompanying affidavit assists any further. 

10. The decision of the learned Magistrate sought to be appealed against appears to have been plainly correct, indeed inevitable. There is insufficient doubt about its correctness to warrant leave to appeal. The present application should be dismissed with costs.

11. This is an appropriate case for an order of indemnity costs, and on that basis I assess the costs which the applicant is to pay in the sum of $1,700.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            13 March 2006

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 February 2006
Date of Judgment:	23 February 2006