SZGIM v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 483

FEDERAL COURT OF AUSTRALIA

SZGIM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 483

SZGIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 120 of 2006

RYAN J
2 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 120 of 2006

BETWEEN:	SZGIM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	2 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be refused.

2.The applicant pay the respondents costs of this application fixed in the amount of $1,450.

3.The applicant may not institute any proceedings against the Minister for Immigration and Multicultural Affairs and her delegate or the Refugee Review Tribunal in respect of his application for a protection visa without leave of this Court.

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 120 OF 2006

BETWEEN:	SZGIM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	2 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1           There is before the Court an application for leave to appeal from orders of a Federal Magistrate made on 16 January 2006.  The application before the learned Federal Magistrate sought judicial review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, (“the Minister”).  That decision, made on 28 January 2002, was to refuse the grant of a protection visa to the applicant.  The applicant for leave to appeal (“the appellant”), subsequently applied to the Refugee Review Tribunal (“the Tribunal”), to review the delegate’s decision and, on 3 March 2003, the Tribunal affirmed that decision.

1. The appellant is an Indian citizen.  He claimed to have a well-founded fear of persecution for the Convention reasons of his Tamil ethnicity and his Islamic religion.  He said that he had been arrested and interrogated as a protester and a dissident and had been perceived as a possible sympathiser or a person with links with a Muslim radical movement and would be at risk of further detention, interrogation or torture if there were any alleged incident or attack involving a Muslim radical group in Tamil Nadu.

2. In the Federal Magistrates Court, the Minister sought summary dismissal of the application pursuant to r 13.10(c) of the Federal Magistrates Court Rules 2001 on the ground that it was an abuse of process and disclosed no reasonable cause of action.  It was further urged that the Court should not give relief in respect of the delegate’s decision when the person affected by the decision has had, and has exercised, a right to seek a de novo merits review of the decision which has not been shown subsequently to be flawed in any respect which would sustain judicial review.

3. The appellant has challenged the decision not to grant him a protection visa on a previous occasion in this Court.  On 3 November 2004, Moore J dismissed an appeal from the decision of the Federal Magistrates Court, which, in turn, had dismissed an application for review of the Tribunal’s decision made on 20 July 2004 (see NAMO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1419). The appellant unsuccessfully sought special leave to appeal to the High Court from the judgment of Moore J.

4. On 11 August 2005, the Federal Magistrates Court dismissed as an abuse of process an application for review of the Tribunal’s decision in proceedings entitled SZGIM v  Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1240. The appellant then filed the present application seeking to review the delegate’s decision.

5. The learned Federal Magistrate dismissed the present application as plainly an attempt to relitigate a case already disposed of and as a persistent attempt by the appellant to bring unmeritorious applications to the Court.

6. In support of his application to this Court for leave to appeal, the appellant filed an affidavit repeating his claims to fear persecution in India and claiming that the Tribunal had acted in bad faith in relation to his application.  It was also asserted that there had been a constructive failure by the delegate to exercise jurisdiction in that he had failed to address the legal question relevant to the appellant by not applying himself to all the issues which he was required to consider before making the decision.  As well, the decision was said to have been made in breach of the rules of natural justice.

7. The applicant also filed a draft notice of appeal making general claims for review on the ground that the Federal Magistrate had failed to find error of law, had been guilty of jurisdictional error and had denied procedural fairness. The draft notice of appeal seeks relief under s 39B of the Judiciary Act 1903 (Cth). The appellant also claimed that the Tribunal had contravened s 424A of the Act; and, finally, contended that the learned Federal Magistrate had failed to find error of law in the Tribunal’s decision.

8. At the hearing of the application this morning, the appellant referred to a number of physical disabilities from which he suffers, including loss of the sight of one eye, diabetes and severe injuries to his fingers.  He insisted that he would be at risk of persecution by the police if returned to India, and would prefer to be incarcerated in Australia rather than face imprisonment in India.

9. I have carefully reviewed the reasons for decision of Lloyd-Jones FM in the light of the appellant’s written submissions filed in this Court on 21 April 2006.  I can detect in the learned Federal Magistrate’s reasons no mistake of fact or error of principle which can be said to have caused his Honour’s discretion to miscarry.  Indeed, neither in his draft notice of appeal nor in his oral submissions seeking leave to appeal has the appellant pointed with particularity to any such error.

10. In particular, I do not consider that the appellant can satisfy the second limb of the requirement for leave to appeal which was enunciated by a Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397. In that case, the Court indicated at, p 398;

    ‘The first test which relates to the prospects of the enclosed appeal is:

    Whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court.

    The second is:

    Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.’

11. I am not persuaded, even assuming the learned Federal Magistrate’s decision to have been wrong, that substantial injustice would result if leave were refused in the present case.  That is because the appellant has availed himself of the opportunity for a full review by the Tribunal on the merits of the delegate’s decision.  He has also exhausted, to the extent of seeking from the High Court special leave to appeal, his rights of judicial review and appeal to expose any error of law or jurisdiction by the Tribunal.

12. In these circumstances, for the reasons explained by Wilcox J in Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294, it is no longer appropriate for the appellant to have a curial examination of the validity or propriety of the foundational decision of the delegate. (See also Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 per Gyles J, at 516 [95].)

13. For these reasons, I have come to the clear conclusion that leave to appeal should be refused.  I shall accede to the request by Counsel for the Minister that she should have her costs on an indemnity basis.  Lloyd-Jones FM considered that such an indemnity would be provided by fixing the Minister’s costs of the proceedings before him in the sum of $2,500.  In my view, a similar result can more or less be achieved in respect of the application for leave to appeal by fixing the Minister’s costs of the proceedings in this Court at $1,450.

14. I shall also make an order corresponding to that made by the learned Federal Magistrate to the effect that no further application by the applicant to review the decision of the Tribunal made on 3 March 2003 or the decision of the delegate of 28 June 2002 be accepted for filing in this Court without the leave of the Court.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            3 May 2006.

The Applicant appeared in person.
Counsel for the Respondent:	Mr I Muthalib
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 May 2006
Date of Judgment:	2 May 2006.