SZIKG v Minister for Immigration and Citizenship

[2008] FCA 1013

FEDERAL COURT OF AUSTRALIA

SZIKG v Minister for Immigration and Citizenship [2008] FCA 1013

Federal Court of Australia Act 1976 (Cth)
Federal Magistrates Court Rules 2001
Migration Act 1958 (Cth)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZIKG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD579 OF 2008

REEVES J
18 JUNE 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD579 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	18 JUNE 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $840.00.

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	NSD579 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	18 JUNE 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. This is an application for leave to appeal a decision of Federal Magistrate Smith delivered on 8 April 2008 dismissing the applicant’s application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered 18 January 2006. That order was made following an application to show cause that was filed by the first respondent under rule 44.12 of the Federal Magistrates Court Rules 2001. Since Federal Magistrate Smith’s order was an interlocutory order, leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. To succeed in an application of this kind the applicant must show that the Federal Magistrate’s decision is attended by sufficient doubt to justify leave and that he or she will suffer substantial injustice if leave were not granted.

3. As Federal Magistrate Smith records at [2] of his reasons for decision, prior to the current application for judicial review filed in the Federal Magistrates Court on 20 March 2008, the applicant had already unsuccessfully sought to review the Tribunal’s decision delivered 18 January 2006, in the Federal Magistrates Court before Federal Magistrate Raphael in 2007, in the Federal Court of Australia before Justice Tracey in 2007 and in the High Court on a special leave application in 2008.  The refusal of the special leave application in the High Court occurred on 29 February 2008.  Federal Magistrate Smith considered this history and suggested the applicant was simply attempting to protract his stay in Australia by this recent round of litigation.

4. The application before Federal Magistrate Smith contained one ground, that: ‘the Tribunal failed to investigate my genuine claims with the requirement of (sic) Migration Act 1958’. His Honour noted that the affidavit in support of the application before him alleged that the Tribunal had failed to follow s 424A of the Migration Act1958 (Cth) (the ‘Act’) in the light of the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (‘SAAP’).  In relation to this allegation, Federal Magistrate Smith noted that the High Court’s decision in SAAP had been decided long before Federal Magistrate Raphael had considered the Tribunal’s decision.

5. Moreover, his Honour noted that Federal Magistrate Raphael had accepted that there may have been a breach of s 424A of the Act in one respect, but he found that the Tribunal’s decision was supported by an alternative finding made by the Tribunal that harm claimed by the applicant lacked a convention nexus. Furthermore, Federal Magistrate Smith noted that that finding of Federal Magistrate Raphael had been upheld by Justice Tracey on appeal in this Court and was consistent with the later decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. His Honour, therefore, found that the ground the applicant relied upon had already been advanced by the applicant unsuccessfully once and that it was therefore doomed to fail again.

6. In my respectful opinion, there is no error apparent in Federal Magistrate Smith’s decision, let alone sufficient doubt to justify the grant of leave to appeal that decision.  I therefore order that this application be dismissed.

1. I also order that the applicant pay the first respondent’s costs of this application fixed in the sum of $840.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        4 July 2008

Counsel for the Applicant:	In person
Counsel for the First Respondent:	Ms B Rayment
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	18 June 2008
Date of Judgment:	18 June 2008