SZJOH v Minister for Immigration and Citizenship

[2008] FCA 1883

FEDERAL COURT OF AUSTRALIA

SZJOH v Minister for Immigration and Citizenship [2008] FCA 1883

MIGRATION – application for leave to appeal – application filed out of time – appellant did not appear at hearing - whether decision of the Federal Magistrates Court attended with sufficient doubt – whether substantial injustice would result if leave refused – application an abuse of process

Held: application dismissed

Federal Court of Australia Act 1976 (Cth)
Federal Court Rules
Judiciary Act 1903 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4,184
SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 227 ALR 683; [2005] FCA 1785
SZJOH v Minister for Immigration & Anor [2008] FMCA 1401

SZJOH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1675 of 2008

JAGOT J
10 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1675 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	10 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The appellant is to pay the first respondent’s costs as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1675 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	10 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a judgment of the Federal Magistrates Court of 26 September 2008 (SZJOH v Minister for Immigration & Anor [2008] FMCA 1401). The Federal Magistrates Court summarily dismissed the appellant’s application to review a decision of the Migration Review Tribunal. Consistent with the analysis of authorities in SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 227 ALR 683; [2005] FCA 1785, summary dismissal of an appeal, without any final adjudication on the merits, is an interlocutory rather than a final decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a Judge gives leave to appeal.

2. The appellant filed the application for leave to appeal on 24 October 2008.  Order 52 rule 5(2)(a) of the Federal Court Rules provides that an application for leave to appeal shall be filed within 21 days after the judgment was pronounced.  Where an application is not filed within that time, an order shall be sought in the application that compliance with subrule (2) be dispensed with.  The application is accompanied by an affidavit stating that the primary judge did not consider the appellant’s application and that the appellant was not legally represented at the hearing in the Federal Magistrates Court.

3. The appellant’s draft notice of appeal specifies two appeal grounds, namely: - (i) the primary judge “failed to find error of law, jurisdictional error, procedural fairness and relief under [s 39B of the Judiciary Act 1903 (Cth)]”, and (ii) the primary judge dismissed the application without considering the legal and factual errors made by the Refugee Review Tribunal. The application to the Federal Magistrates Court in fact sought review of a decision of the Migration Review Tribunal.

4. The appellant did not appear at the hearing.  The day before the hearing the appellant sent a letter and medical certificate to the Court saying he was not in a position to attend the hearing and seeking an adjournment.  The first respondent submitted that the application should be dismissed by reason of the appellant’s default in not prosecuting the appeal or filing submissions as required (Order 35A rr 2 and 3 of the Federal Court Rules) and because the proceedings were vexatious, frivolous and an abuse of process (Order 20 r 5 of the Federal Court Rules).  The first respondent noted the generality of the medical certificate (which does not say the appellant was unfit to attend Court) and the lengthy history of the litigation.  I accept these submissions.  The application for leave should be refused given the appellant’s failure to appear at the hearing and the inadequacy of the explanation in the facsimile of 9 December 2008.  This conclusion is also supported by the lack of merit of the application for leave.

5. The first question on the leave application would be whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the appellate court.  The second would be whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). These questions “bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations” (Sharp v Deputy Commissioner of Taxation(Cth) (1988) 88 ATC 4,184 at 4,186).

6. As the primary judge noted in 2007 the appellant filed an application in the Federal Magistrates Court seeking review of the same decision of the Migration Review Tribunal.  The Federal Magistrates Court dismissed the 2007 application and the Federal Court dismissed an appeal.  The appellant then sought special leave of the High Court, which was refused.  The primary judge dismissed the application because the appellant had no reasonable prospect of successfully prosecuting the proceedings and the application was an abuse of process because it sought to re-agitate a decision that had already been made and upheld on appeal. 

7. I agree with the primary judge and am thus not satisfied that leave to appeal should be granted.  The decision of the primary judge is not attended with doubt such as to warrant reconsideration by this Court.  These proceedings are an abuse of process and thus substantial injustice would not result if leave to appeal is refused.

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

Associate:

Dated:        10 December 2008

The Appellant did not appear
Solicitor for the First Respondent:	Ms E Baggett, DLA Phillips Fox
The Second Respondent did not appear

Date of Hearing:	10 December 2008
Date of Judgment:	10 December 2008