SZGRR v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1814

FEDERAL COURT OF AUSTRALIA

SZGRR v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1814

SZGRR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1980 OF 2005

EDMONDS J
5 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1980 OF 2005

BETWEEN:

SZGRR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

5 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $1,500 with four months to pay.

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 1980 OF 2005

BETWEEN:

SZGRR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	5 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. This is an application for leave to appeal from the judgment of Federal Magistrate Smith given on 11 October 2005. The Federal Magistrate summarily dismissed the applicant’s application pursuant to rule 13.10(c) of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of the Court’s process.

2. By reason of that order, the judgment of the Federal Magistrate is interlocutory in nature, requiring the applicant to obtain leave to appeal.  The relevant principles in relation to such applications were considered by the Full Court of this Court in Décor Corporation v Dart Industries (1991) 33 FCR 397, in the course of which the Court discussed the principles emanating from the decision in Niemann v Electronic Industries Limited (1978) VR 431. Those principles provide general guidance which a court should normally accept on applications for leave to appeal.

3. The two considerations for which Niemann is authority are (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court, and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  The first consideration referred to is essentially a discretionary power.  The application for leave to appeal is opposed in this case on the basis that, having regard to the relevant matters, the exercise of the Federal Magistrate’s discretion did not miscarry.  The matters to which the respondent has referred include that the Refugee Review Tribunal (‘the Tribunal’) decision indicated two compelling reasons for affirming the delegate’s decision, namely that:  (1)         the applicant did not attend his Tribunal hearing and (2) by the time of its decision, the applicant’s own political party, the Bangladesh Nationalist Party was in government with a large majority.

4. The applicant’s application for judicial review contained a mixture of claims seeking merits review and unparticularised contentions.  The applicant had already engaged in an extensive history of litigation in connection with the same Tribunal decision prior to the proceedings commenced in the Federal Magistrates Court.  The Federal Magistrate noted that the applicant had engaged in four separate sets of proceedings that included a substantive dismissal in this Court, a dismissal of appeal proceedings in the Full Court, the deemed abandonment of a High Court application for special leave and a dismissal on the papers of a further High Court application for special leave.

5. It was the view of the Federal Magistrate that the applicant’s documents in the most recent application before him reflected the faults of previous documents submitted by the applicant.  They were formulaic, containing unparticularised allegations and garbled legal submissions.  Finally the applicant did not point to any argument of any merit that could not have reasonably been raised previously and did not point to any special circumstance to justify the court allowing a fresh proceeding to be maintained.

6. My review of the decision of the Federal Magistrate below does not disclose any error and, for that reason, if I was to grant leave to appeal, my view is that the decision is not attended with sufficient doubt to warrant it being reconsidered.

7. As to the second consideration to which I am to have regard, namely, whether substantial injustice would result if leave were refused, it seems to be common ground that the applicant in this case has been afforded every opportunity to agitate judicial review of the Tribunal’s decision, both in this Court and in the High Court.  The fact that neither court has found jurisdictional error below does not deny the opportunity that has been presented or afforded to him. 

8. This, coupled with the fact that the grounds of the present application replicate the grounds which were previously agitated in both this Court and in the High Court in special leave applications, lead me to conclude that in relation to the second consideration to which I am mandated to have regard, no substantial injustice would result if leave were refused.

9. For those reasons I refuse leave to appeal from the decision of the Federal Magistrates Court.

10. The applicant is to pay the respondent’s costs fixed in the sum of $1,500.

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

Associate:

Dated:            16 December 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 December 2005
Date of Judgment:	5 December 2005