SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1296

FEDERAL COURT OF AUSTRALIA

SZGGS v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1296

SZGGS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1438 of 2005

EMMETT J
7 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1438 OF 2005

BETWEEN:	SZGGS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application filed on 18 August 2005 be dismissed.

2.The applicant pay the 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	NSD1438 OF 2005

BETWEEN:	SZGGS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	7 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 27 December 1996.  On 9 January 1997, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 21 July 1997, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 15 August 1997 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate's decision. On 13 July 1999, the Tribunal affirmed the decision not to grant a protection visa. Since then, the applicant has made several attempts in various courts to have the decision of the Tribunal set aside or quashed.

2. On 9 August 1999, an application for an order of review under Part 8 of the Act, as then in force, was filed in the Federal Court of Australia. On 17 November 1999, Einfeld J ordered that the application be dismissed with costs. The applicant subsequently became a member of proceedings in the High Court that resulted in the decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. Following that decision, Gaudron J made orders in the High Court on 25 November 2002. Pursuant to those orders, the applicant commenced a proceeding in the High Court on 30 May 2003, by filing an affidavit and draft order nisi.  That proceeding was remitted to the Federal Court pursuant to the orders of Gaudron J.  At that stage the applicant was represented by a legal adviser.  On 30 April 2004, I ordered that the remitted proceeding be dismissed with costs.  That order was made by consent of the parties.

3. On 17 May 2004, a further proceeding was commenced in the Federal Magistrates Court of Australia seeking review of the Tribunal's decision.  On 25 August 2004, the Minister filed a notice of motion seeking orders that that proceeding be dismissed as an abuse of process.  However, prior to the hearing of that motion, which was fixed for 1 September 2004, the applicant filed a notice of discontinuance on 31 August 2004.  On 24 September 2004, the applicant filed an application for an extension of time to file and serve a notice of appeal from the judgment of Einfeld J on 17 November 1999.  On 9 December 2004, Bennett J ordered that that application be dismissed with costs.  On 6 January 2005, the applicant applied to the High Court for special leave to appeal from the decision of Bennett J.  On 27 April 2005, the High Court ordered that special leave to appeal be refused.

4. The applicant then commenced a further proceeding in the Federal Magistrates Court on 10 May 2005, seeking Constitutional writ relief in respect of the Tribunal’s decision. On 1 August 2005, Driver FM ordered that that proceeding be dismissed as an abuse of process pursuant to rule 13.10(C) of the Federal Magistrates Court Rules. 

5. That order was an interlocutory order and, accordingly, an appeal to this Court requires leave.  On 18 August 2005, the applicant filed an application for leave to appeal from the order of Driver FM.  That application is now before me.

6. The applicant filed written submissions in support of his application.  Those submissions were filed yesterday but were not served on the Minister.  The Minister, however, through her solicitor, does not seek any further time in order to deal with the submissions.  When asked to indicate to the Court the nature of his complaint about the Tribunal's decision, the applicant said that the Tribunal did not realise his problem properly and had not tried to realise his problem. 

7. The applicant's submissions do not make any attempt to address Driver FM’s reasons for dismissing his proceeding as an abuse of process.  The submissions, which run to more than five pages, appear to take issue with the factual findings made by the Tribunal.  They also make reference to authorities of the High Court and of this Court which do not have any bearing on the issue that is before me.  The grounds specified in the draft notice of appeal are as follows:

   ‘(1)The Single judge of the Federal Magistrate Court in his Honors (sic) judgment delivered on 13 February 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

   (2)The Tribunal made judgment was not maintain the proper procedure of the Migration of ACT.

   (3)Recent High Court judgment Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 1 (4 February 2003).

   (4)Recent Federal Court of Australia decision SAAP MIMIA. I will file amendment of the grounds after receive (sic) the reasons for judgment.

   (5)I also refer SZFKL v MIMIA (2005) FCA.’

   The grounds do not make sense. 

8. On the material before me, the proposed appeal could not possibly succeed and there would be no utility in granting leave to appeal.  Accordingly I propose to refuse leave to appeal.

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

Associate:

Dated:            21 September 2005

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 September 2005
Date of Judgment:	7 September 2005