SZGJJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1538

FEDERAL COURT OF AUSTRALIA

SZGJJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1538

SZGJJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1782 of 2005

JACOBSON J
25 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1782 OF 2005

BETWEEN:	SZGJJ APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	xx OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant is to 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	NSD 1782 OF 2005

BETWEEN:	SZGJJ APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	24 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the orders and judgment of Federal Magistrate Smith dated 2 September 2005. On that date the learned magistrate dismissed an application for judicial review pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules (“FMC Rules”).

2. His Honour found that the proceeding was doomed to failure and that it was an abuse of process. On 26 September 2005 the applicant filed an application for leave to appeal. Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Smith are interlocutory.

3. The principles on which leave to appeal is granted are well known.  The question which arises is whether the decision is attended by sufficient doubt and whether any substantial injustice would result from a refusal to grant leave supposing that the decision was wrong;  see Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397.

   Background

4. The applicant is a citizen of Bangladesh.  He claims to have had a history of involvement in politics in that country giving rising to a well-founded fear of persecution on political grounds.  The Refugee Review Tribunal (“RRT”) rejected his claim in its decision handed down on 20 August 2002.

5. The proceeding before Federal Magistrate Smith was the third occasion on which the applicant has sought unsuccessfully to challenge the decision of the RRT.  His Honour recounted the history of the proceedings at [5] to [17] of his judgment of 2 September 2005. 

6. The first application for review was heard by Federal Magistrate Raphael.  An appeal was dismissed by Hely J on 16 June 2003;  see NAAL v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 582. Hely J succinctly recorded the applicant's claims in the RRT and the reasons why the RRT rejected them at [1] to [4] of his reasons for judgment.

7. Special leave to appeal to the High Court was refused on 18 June 2004. 

8. The second application was for an order nisi in proceedings filed in the High Court on 15 July 2004.  The proceedings were remitted to the Federal Court.  The application was dismissed by Moore J on 10 November 2004 as an abuse of process.  An application for an extension of time to seek leave to appeal was refused by Branson J on 1 February 2005.  Special leave to appeal was refused on 27 April 2005. 

9. As the learned Federal Magistrate states at [18], within a month of the failure of his second excursion to the High Court the applicant commenced his third proceeding.  The learned Magistrate found at [19]:

   “Plainly, on the history and the judgments which I have recounted above the proceeding must be doomed to failure and is an abuse of process. In my opinion the basis of this prediction and characterisation is that the applicant’s entitlement to relief under s39B has become res judicata or that he faces an issue estoppel on whether the Tribunal’s decision is a ‘privative clause decision’ within s474(1).

1. His Honour then reviewed additional documents relied upon by the applicant in the Federal Magistrates Court.  He said at [20] that the applicant was unable to identify any argument which could not reasonably have been raised in his original proceeding.  His Honour went on to say at [21]:

   “The applicant’s history shows a complete disregard of the need for finality in relation to judicial review of administrative decisions, and the applicant’s statements to me today have indicated to me that he still does not appreciate the weight of this principle.  His only argument was that he relied on the papers he had filed, and that he knew the Tribunal had made a mistake.”

2. As I said above, the learned Magistrate dismissed the application under Rule 13.10(c) of the FMC Rules. He made orders directing the registry not to receive further applications for review of the decision of the RRT without the leave of the court. He observed that the Federal Magistrate Court's power to make such an order was upheld in SZDCJ v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29].

   Discussion

3. The applicant filed an application for leave to appeal on 23 September 2005 with a draft notice of appeal.  The draft consisted of a mixture of assertions and unparticularised grounds including references to well-known authorities but without any attempt to relate them to the subject matter of the proceedings. 

4. On 24 October 2005 my associate received a written notification from the applicant stating that he is having medical rest and that he is unable to attend the hearing.  However, he states in the letter that the court may consider the appeal "with my documents" which is plainly a consent to a disposition of the appeal on the papers.

5. I have considered carefully the decision of Federal Magistrate Smith and I have also considered and read the material relied upon by the applicant including the history of the matter. 

6. In my view there is no doubt whatsoever about the correctness of the learned Magistrate's decision.  It is difficult to imagine a more blatant abuse of process.  The history of the proceedings demonstrates that no injustice would result from the refusal of leave to appeal. 

7. Accordingly, the orders that I make are that leave to appeal be refused with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             1 November 2005

Counsel for the Applicant:	No appearance by the applicant
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 October 2005
Date of Judgment:	25 October 2005