SZILE v Minister for Immigration and Multicultural Affairs

[2006] FCA 1331

FEDERAL COURT OF AUSTRALIA

SZILE v Minister for Immigration and Multicultural Affairs [2006] FCA 1331

SZILE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD1274 OF 2006

JESSUP J
14 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1274 OF 2006

BETWEEN:	SZILE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	14 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, fixed in the sum of $1,500.00.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1274 OF 2006

BETWEEN:	SZILE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	JESSUP J
DATE:	14 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 28 June 2006 in which that court summarily dismissed an application which had been made to it for review under section 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal made on 8 February 2006 in which the Tribunal found that it had no jurisdiction to consider the application before it.

2. The approach which I am obliged to take in a case such as the present is that referred to by the Full Court in Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397; that is to say, I should ask myself two questions: first, whether in all the circumstances the decision of the Federal Magistrate is attended by sufficient doubt to warrant it being reconsidered by this court; and secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

3. There is something of a background to the applicant’s circumstances and to his attempts to obtain a protection visa under the Migration Act 1958 (Cth). A delegate of the Minister first rejected an application for such a visa in September 2000. The applicant applied for a review of that rejection in the Tribunal, but for reasons which have been developed in other judgments to which I shall refer in a moment, the applicant never presented his case for such a review in the Tribunal.

4. It seems that the notification of the Tribunal hearing did not reach the applicant because he was not then living at the address which the department had on record as his place of residence.  Accordingly, the Tribunal appears to have dealt with the matter on such information as was available to it without the direct assistance of the applicant.  It affirmed the decision of the delegate in October 2002.

5. The applicant applied for judicial review of that decision of the Tribunal, and that application was dismissed by order of the Federal Magistrates Court on 15 October 2004.  The applicant lodged a notice of appeal in this court, but because the Magistrate’s decision was interlocutory the notice of appeal was treated, it seems, as an application for leave to appeal.  It came before Jacobson J in February 2005.  In the course of his judgment on 14 February 2005, his Honour said:

   “In my opinion there is nothing in the circumstances of the present case to suggest that there is any possibility of the application of the Wednesbury test to the decision made by the RRT in accordance with the statutory scheme to proceed to hear and determine the application in the absence of the applicant.   Here the RRT, although it was not obliged to take any further action to allow or enable the applicant to appear, did take the step of contacting the migration agent.  It seems to me to be clear that the statutory scheme to which Mr Lloyd referred, and which the Federal Magistrate had in mind, applied; so there is no room for the argument that Wednesbury unreasonableness may give grounds for any possible basis of review. 

   Accordingly, in my opinion the decision of the magistrate was not attended by sufficient doubt to warrant the grant of leave to appeal.  I note, as was observed by the learned Federal Magistrate that this may not seem a fair outcome to the applicant.  He pointed out to me today and placed some stress upon the fact that he was denied a hearing.  However, the learned Federal Magistrate pointed out that any unfairness to the applicant was not the fault of the Refugee Review Tribunal which followed the statutory scheme.  Accordingly, I do not see that there is any injustice involved in the denial of leave to appeal.  The order I will make this morning is that leave to appeal be refused.”

6. On 10 November 2005 the applicant made a further application in the Refugee Review Tribunal to review the original decision of the delegate.  On 8 February 2006 the Tribunal found that it did not have jurisdiction for two reasons:  first, the application was well out of time; and secondly, the question of reviewing the delegate’s original decision had already been dealt with by the Tribunal as previously constituted in October 2002 and that there was nothing further for the Tribunal to do. 

7. The applicant again applied for judicial review, this time of the second decision of the Tribunal, and that application was determined adversely to the applicant by the Federal Magistrates Court on 28 June 2006.  The judgment of that court on that day is the one from which the applicant now seeks leave to appeal. 

8. The applicant represented himself before me today.  He referred only to his desire to have what I would compendiously call his day in court.  He said that he had never had the opportunity of putting his case to the Tribunal and he wanted to have that opportunity.  He desired to have the matter sent back to the Tribunal so that he would have the fair hearing which he was denied the first time round, as it were.

9. The difficulty with the applicant’s position is that the issue of the fairness and regularity of the way in which the Tribunal proceeded in October 2002 was conclusively determined once and for all by the Federal Magistrates Court in October 2004.  The judgment of that court on that occasion was, as I have said, the subject of an application for leave to appeal in this court and that application was unsuccessful.  It was not the function of the Federal Magistrate in the present case to revisit the ground which had been finally and conclusively covered in October 2004, and the learned Federal Magistrate clearly recognised that circumstance.

10. As for the reasons of the Federal Magistrate published on 28 June 2006, they disclose that there were two bases upon which she summarily dismissed the application before her.  The first was that the decision of what I will call the second Tribunal that it had no jurisdiction was so self-evidently correct that the applicant’s proceeding in the Federal Magistrates Court had no prospect of success.  Nothing which the applicant has put to me today and nothing which otherwise appears from the court file, has persuaded me that the Federal Magistrate’s conclusion in this regard was attended by any doubt.  I do not believe that the present circumstances provide any warrant for the judgment of the Federal Magistrates Court to be reconsidered by this court.

11. The second ground upon which the Federal Magistrate summarily dismissed the applicant’s application for judicial review was that she inferred that it had been filed for the collateral purpose of the applicant extending his stay in Australia, and that it was therefore an abuse of process.  I would prefer not to make any particular observation about that, save to point out that the applicant has again put to me today that his primary concern is to have his case on the merits considered by the Tribunal.  Nothing which I say in that regard should be construed as any kind of suggestion that there is any injustice or unsatisfactory aspect in the way in which the matter was originally dealt with by the Tribunal.  So far as this court is concerned, those aspects were conclusively dealt with by the Federal Magistrates Court the first time round and by Jacobson J.  Without saying any more about them than that, I conclude that those aspects likewise are not attended by any such doubt as would warrant them being reconsidered by this court. 

12. In the circumstances I will dismiss the application for leave to appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        16 October 2006

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 September 2006
Date of Judgment:	14 September 2006