SZIPI v Minister for Immigration and Multicultural Affairs

[2006] FCA 1035

FEDERAL COURT OF AUSTRALIA

SZIPI v Minister for Immigration & Multicultural Affairs [2006] FCA 1035

SZIPI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1162 OF 2006

TRACEY J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1162  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIPI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	8 AUGUST 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, fixed in the sum of $1,500.

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 1162  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIPI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TRACEY J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a decision of a Federal Magistrate given on 22 June 2006 whereby his Honour dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) to refuse to entertain an application by the applicant to review a decision of a delegate of the Minister.  The decision was made on 31 July 2002.  The application was made on 11 January 2006.  The intervening history is set out in the Federal Magistrate’s reasons.  Those reasons appear at SZIPI v MIMA [2006] FMCA 901.

2. In summary what occurred was that the applicant sought review of the delegate’s decision in the Tribunal.  He was unsuccessful.  He then applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The Federal Magistrates Court dismissed the application.  An appeal was brought to this court. In July 2005 Justice Hely dismissed the appeal.  The applicant then filed an application for special leave to appeal to the High Court.  The High Court dismissed that application in December last year.  Immediately thereafter the applicant lodged a further application for review. 

3. The learned magistrate summarily dismissed the application in the present matter under r 13.10 of the Federal Magistrates Court Rules. Specifically the Federal Magistrate determined that there were no reasonable prospects of the applicant successfully prosecuting the proceeding, that the proceeding was frivolous and vexatious and an abuse of process of the Federal Magistrates Court. The applicant seeks leave to appeal from the learned magistrate’s decision. His application is supported by an affidavit dated 15 June 2006. In that affidavit he complains that his January 2006 application to the Tribunal was dismissed without a hearing. He contends that this constituted a denial of natural justice. He further complains that the learned Federal Magistrate also denied him natural justice by, as he puts it, and I quote:

   “Not giving any opportunity to appear any further judicial review.”

   By this I understand the applicant to mean that, in dismissing his application summarily, the learned magistrate somehow prevented any further application for judicial review being prosecuted.  The affidavit exhibits a draft notice of appeal.  The notice of appeal contains two grounds:  it alleges that the Tribunal denied the applicant natural justice; and that the Federal Magistrate made a jurisdictional error and denied the applicant natural justice. 

4. The applicant appeared before me this afternoon in person.  He had the assistance of an interpreter.  He made some short supplementary submissions.  In the end I understood him to acknowledge that his January 2006 application which sought to challenge the Minister’s delegate’s decision which had been made on 31 July 2002 was an application made hopelessly out of time.  If for no other reason than this it was bound to fail.

5. The decision of the Federal Magistrate was plainly correct for the reasons which he gave.  No appeal would have any reasonable prospect of success.  The application for leave to appeal will be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        10 August 2006

Appellant:	Appellant in person
Counsel for the Respondent:	Z. Chami (Solicitor)
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006