SZHIK v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 703

FEDERAL COURT OF AUSTRALIA

SZHIK v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 703

MIGRATION – no point in principle

SZHIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 648 OF 2006

CONTI J
6 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 648 OF 2006

BETWEEN:

SZHIK
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

29 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the respondents’ costs assessed at $600.00.

3.The Registry of the Federal Court of Australia not accept for filing by or on behalf of the applicant any further process against the Minister without the prior leave in writing of a judge 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 648 OF 2006

BETWEEN:

SZHIK
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	6 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Magistrate given on 2 February 2006.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made as long ago as 4 May 2000.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 30 June 1999 to refuse to grant a protection visa to the applicant. 

2. The applicant is a citizen of the People’s Republic of China.  The essence of his claim for refugee status was based upon a dispute with local authorities over non-payment of money owed to him for construction work carried out on a building owned by the police.  He claimed that he was threatened and beaten by the police.  The Tribunal found that the applicant’s claims lacked a Convention nexus as they were based on a contractual dispute over non-payment of money for services rendered.

3. Before the Federal Magistrate the respondent Minister sought dismissal of the application on the basis that the proceedings were an abuse of process.

4. The applicant had challenged the decision not to grant him a protection visa on a previous occasion in this Court. On 4 August 2000 Hely J dismissed an application for review of the Tribunal’s decision on the basis of non-attendance ([2000] FCA 1138). It was not until 13 October 2005 that the applicant sought review of the Tribunal’s decision in the Federal Magistrates Court.

5. Before the Federal Magistrate the applicant claimed that he had not been prepared to attend the hearing in the Federal Court back on 4 August 2000 without the assistance of his migration agent, and that he was unable to find that person on the day.  He had done nothing apparently by way of attempted further review of the Tribunal’s decision since, and no evidence was provided relevantly of any proactivity of any kind by the applicant since 4 August 2000.  The applicant claimed nevertheless that the Tribunal committed jurisdictional error in circumstances where it unreasonably and without probative evidence found that the applicant’s dispute was ‘a one off culmination of particular social and political factors’.  No particulars were provided to support the claim.

6. The Federal Magistrate found that having regard to the absence of evidence by the applicant of any attempt by him to seek any advice, or to pursue any rights he might otherwise have had in respect of his application, until 13 October 2005, that being some 5 years after Hely J dismissed his original application, the overwhelming inference was that the application for review before him was for the purpose of extending the applicants’ stay in Australia.  The Federal Magistrate found that there appeared to be no reasonable prospect of success of his application placed before the Court, and in those circumstances, the Federal Magistrate dismissed the application as an abuse of process. 

7. In support of the application for leave to appeal, the applicant filed an affidavit claiming, inter alia, that he had changed his address in July 2000 and had so informed the respondent Minister’s department, yet documents were still sent by the department to his former address.  He said that he did not receive the court book prepared for the Federal Magistrate proceedings, and hence ‘[s]o I did not appear in the Federal Court’.  The applicant also filed a draft notice of appeal claiming that the Tribunal failed to consider and properly exercise its discretionary power provided by the Migration Act 1958 (Cth) and that the Federal Magistrate had ‘failed to consider the Tribunal decision [had] no basis for making such a statement’. 

8. At the hearing of this application, the applicant sought merely to launch into an attack on the Tribunal’s decision of 4 May 2000, asserting that the ‘Green Book’ had never been sent to him in the first place.  It became immediately evident that his case in this Court was purportedly related to purported merits of his original review application of the decision of the Minister’s delegate launched some six years ago. 

9. It quickly became evident to the Court that the ‘appeal’ had no prospects of success and constituted an abuse of the Court’s processes, no conceivable reason being at least proffered for the non-attendance in the proceedings before Hely J on 4 August 2000.

10. The application for leave to appeal was accordingly dismissed and I ordered that the registry not receive for filing any further process from the applicant.

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

Associate:

Dated:             6 June 2006

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 May 2006
Date of Judgment:	6 June 2006