SZHGF v Minister for Immigration and Multicultural Affairs

[2006] FCA 1502

FEDERAL COURT OF AUSTRALIA

SZHGF v Minister for Immigration & Multicultural Affairs [2006] FCA 1502

SZHGF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1543 OF 2006

EDMONDS J
7 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1543 OF 2006

BETWEEN:

SZHGF
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	7 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from a judgment of the Federal Magistrates Court delivered on 26 July 2006 be dismissed.

2.The applicant pay the first respondent’s costs of the application.

3.The Registry of this Court refuse to accept any further application for review of the decision of the delegate of the first respondent dated 17 December 2001, file number CLF2001/045915, or the decision of the Refugee Review Tribunal given on 9 April 2003, reference N02/41486 without prior leave of the 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 1543 OF 2006

BETWEEN:

SZHGF
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	7 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for leave to appeal against a judgment of the Federal Magistrates Court (Emmett FM), delivered on 26 July 2006: SZHGF v Minister for Immigration & Anor [2006] FMCA 1080. By that judgment her Honour dismissed an application for review of a decision of a delegate of the first respondent dated 17 December 2001 refusing the applicant a grant of a protection visa.

2. In response to the application filed in the court below by the applicant on 4 October 2005 for review of the decision of the delegate, the first respondent, on 22 November 2005, filed a notice of motion for summary dismissal pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth). The basis of that motion was that the applicant’s application had no reasonable prospects of success, that the proceeding was frivolous or vexatious and an abuse of the processes of the Court.

3. Prior to commencing proceedings in relation to the decision of the delegate, the applicant had already commenced a number of proceedings for review of the decision of the second respondent (‘the Tribunal’) dated 9 April 2003, the history of which proceedings is set out in the reasons for judgment of her Honour below: see [3] – [5].  Essentially, the decision of the Tribunal has been found to be free of jurisdictional error by another Federal Magistrate, by a single judge of this Court, and by the High Court of Australia. 

4. In upholding the notice of motion filed by the first respondent, and dismissing the application under rule 13.10(a), her Honour referred to and recited what was said by Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549 at [23] and [24], and accepted that the decision of the Tribunal was the operative decision in relation to the applicant’s application for a protection visa. On that basis her Honour held that the applicant’s proceeding had no, or no reasonable, prospects of success. In addition, her Honour found that the application was an abuse of the court’s processes, given that the applicant had been given an opportunity for full consideration of his application for a protection visa on the merits by the Tribunal and had exhausted all possible avenues of judicial appeal thereafter: see [22] of her Honour’s reasons.

5. In light of the procedural history of the applicant’s litigation in respect of the refusal of a protection visa, her Honour made an additional order that no further application for review of the decision of the delegate be accepted for filing without prior leave of the Federal Magistrates Court.  The applicant now seeks leave to appeal the decision of her Honour on the grounds set out in a draft notice of appeal attached to the applicant’s affidavit filed in support of the present application.  These grounds are as follows: first, that her Honour did not ‘follow the proper procedure of the applicable law and breached the rules of natural justice’; second, that the applicant ‘was denied procedural fairness in connection with the making of the decision’; and third, the ‘making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported’. 

6. In addition, in his supporting affidavit, the applicant asserts that the Federal Magistrates Court dismissed the proceeding ‘without giving any convincing reason’ and that ‘the Tribunal breached the rules of natural justice as it failed to examine relevant document [sic] filed by the applicant’. 

7. With regard to the grounds set out in the draft notice of appeal, in the absence of any particularisation of those grounds as directed by the Deputy District Registrar on 17 August 2006, they cannot be sustained.  The same conclusion must be reached with respect to those matters referred to and relied upon by the applicant in [3] – [5] of his supporting affidavit.  The first respondent submits that the reasons for judgment of her Honour below do not disclose any error and I agree.  If I were to grant leave to appeal I am firmly of the view that the applicant would not only have no reasonable prospect of success, but no prospect of success. 

8. It follows that the application for leave to appeal must be dismissed with costs.  The first respondent also seeks an order in similar terms to that made by the Federal Magistrate, namely, that no further applications for review of the decision of the delegate of the first respondent dated 17 December 2001, file number CLF2001/045915, or the decision of the Tribunal given on 9 April 2003, reference N02/41486 should be accepted for filing without prior leave of this Court.  Having regard to the history of the applicant’s litigation, I am also of the view that such an order should be made and I propose to make an order in those terms. 

9. The orders of the Court will be that:

   1.The application for leave to appeal from a judgment of the Federal Magistrates Court delivered on 26 July 2006 be dismissed.

   2.The applicant pay the first respondent’s costs of the application.

   3.The Registry of this Court refuse to accept any further application for review of the decision of the delegate of the first respondent dated 17 December 2001, file number CLF2001/045915, or the decision of the Refugee Review Tribunal given on 9 April 2003, reference N02/41486 without prior leave of the Court. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:
Dated:        22 November 2006

Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	7 November 2006
Date of Judgment:	7 November 2006