SZEPL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 780

FEDERAL COURT OF AUSTRALIA

SZEPL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 780

SZEPL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD680 OF 2005

EMMETT J
1 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD680 OF 2005

BETWEEN:	SZEPL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	1 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.that the application for leave to appeal be dismissed;

2.the applicant pay the respondent’s costs in the sum of $900. 

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	NSD680 OF 2005

BETWEEN:	SZEPL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	1 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for leave to appeal from orders made by the Federal Magistrates Court on 13 April 2005.  By those orders the Federal Magistrates Court dismissed a proceeding summarily and ordered the applicant to pay the respondent’s costs. 

2. The applicant is apparently a citizen of India.  After arriving in Australia he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). That application was refused. On 5 March 2003, the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to refuse a visa. The Tribunal published its reasons on 25 March 2003. On 17 April 2003, the applicant began a proceeding in the Federal Magistrates Court seeking review of the Tribunal’s decision. On 5 February 2004, that proceeding was discontinued by consent and the applicant agreed to pay the Minister’s costs.

3. On 20 October 2004, the applicant commenced a further proceeding in the Federal Magistrates Court.  That proceeding also apparently sought relief in respect of the Tribunal's decision.  The grounds specified in that application disclosed no basis of review that could succeed, in the absence of proper particulars.  The grounds were as follows:

   ‘1.My home was attacked again last month.

   2.The Minister deprived me of the natural justice.

   3.The Migration Act of 1958 was not properly observed.

   4.The decision did not reflect the material facts of my claim.

   5.The decision concentrated in particular fact, while ignored many facts in this case. 

   6.The decision was made without any inquiry regarding my claims.

   7.The decision was made preseted [sic] in the back of the Minister’s mind.

4. On 2 November 2004, a Registrar of the Federal Magistrates Court made orders that the applicant file and serve an amended application giving complete particulars of each ground of review, together with an affidavit containing additional evidence including, if need be, a transcript of the proceedings before the Tribunal.  The Registrar directed that those documents be filed by 30 January 2005.  It was quite clear that, in the absence of such an amended application and particulars, the grounds specified in the application of 20 October 2004 could not give rise to any relief.     

5. On 24 February 2005, the Minister’s solicitors wrote to the applicant, indicating that the Minister was prepared to allow the applicant until 10 March 2005 to file and serve an amended application, giving complete particulars of each ground of review.  The letter indicated that if the applicant failed to file and serve an amended application by that date, the Minister would apply to have the matter summarily dismissed.

6. No amended application was filed, although the applicant wrote, to the Minister’s solicitors, a letter dated 10 March 2005, which was received on that day.  In that letter, which was headed ‘Amended application’, the applicant claimed that his life was in danger if he returned to India.  The letter enclosed a facsimile copy of a letter from a municipal corporation in India.  It clearly provides no possible ground for review, or any supporting particulars in respect of the grounds of review stated in the application of 20 October 2004.

7. The reasons of the Federal Magistrates Court record that, when asked if there were any discretionary considerations that should be taken into account, the applicant indicated that he was seeking more documents from India and needed more time.  He said that his wife told him not to come back to India because he was at risk if he did. 

8. The applicant appeared in person today at the hearing of his application for leave to appeal.  When asked to make submissions in support of his application, he said that he would be killed if he returned to India.  He said that he was waiting for his wife to send a document but, because she was by herself, she was unable to do so. 

9. The material before the Federal Magistrates Court failed to disclose any possible basis upon which relief could be granted in respect of the Tribunal’s decision.  Having regard to the history of the matter, where relief had already been sought in respect of the same decision but the application discontinued, the conclusion must be drawn that the second proceeding, giving no particulars that would support any ground for relief, was vexatious. 

10. In any event, the primary judge dismissed the proceeding for failure to comply with the direction to furnish particulars of the grounds relied upon.  There was no error on the part of the primary judge.  Leave to appeal would have no utility, because the appeal would be bound to fail.  In the circumstances, the application for leave to appeal should be refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             10 June 2005

The applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 June 2005
Date of Judgment:	1 June 2005