FEDERAL COURT OF AUSTRALIA

SZEKZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 117

SZEKZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1829 of 2004

BRANSON J

16 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal from the decision of the Federal Magistrates Court be dismissed.

2.                  The applicant pay the respondent’s costs fixed at $1500.

REASONS FOR JUDGMENT

1                     By a notice of appeal filed on 6 December 2004 the applicant purported to appeal from a decision of the Federal Magistrates Court that was in fact not delivered until 22 December 2004.  The explanation for the early filing of the notice of appeal would appear to arise from the fact that the hearing of the applicant's application to the Federal Magistrates Court took place on 2 December 2004.  Presumably the applicant left the hearing with the knowledge that his application would not be successful.

2                     On 22 December 2004, Lloyd-Jones FM formally dismissed the applicant’s application to the Federal Magistrates Court as an abuse of process.  His Honour's judgment was for that reason interlocutory.  The applicant requires leave to appeal from it.  On 8 February 2005 I ordered that the purported notice of appeal be treated as an application for leave to appeal and an application for an extension of time within which to file and serve an application for leave to appeal.  Because of the premature filing of the purported notice of appeal I intended that order to deem the purported notice of appeal to have been filed on that day.  That order should be corrected by the adding of the words ‘dated 8 February 2005’ after the words ‘treated as an application’.  I order that it be so corrected.

3                     The history of the applicant’s endeavours to obtain a visa under the Migration Act 1958 (Cth) is summarised in a chronology prepared by the respondent.  That chronology will be annexed to and form part of these reasons for judgment. 

4                     The applicant has suggested that the chronology may not be complete.  The applicant has told me that he was part of a class action in the High Court.  The respondent has no record of the applicant being involved in a class action.  I am willing to assume the accuracy of what the applicant has put to me but it does not, I think, bear in his favour on this application.

5                     As the chronology records, the applicant applied in July 1998 for judicial review of the decision of the Refugee Review Tribunal by which a decision of a delegate of the Minister not to grant him a protection visa was affirmed.  That application was heard and dismissed with costs by Finn J on 26 November 1999 (see [1999] FCA 1729).  An appeal against the decision of Finn J was discontinued by the applicant on 12 May 2000. 

6                     The grounds of review relied upon before Finn J were identical to those relied upon in the applicant’s later application to the Federal Magistrates Court, and identical also to those upon which the applicant now claims to be aggrieved by a decision of the Federal Magistrates Court. 

7                     The learned Federal Magistrate concluded that it would be an abuse of the Court’s process if the applicant were allowed to litigate anew the case determined by Finn J and in respect of which an appeal was discontinued.  The learned Federal Magistrate also took into account the possibility that the applicant, who is in detention for breach of visa conditions, may have been seeking to extend his stay in this country by taking advantage of the delay ordinarily experienced in obtaining hearing dates for migration cases in the Federal Magistrates Court.  His Honour noted that Finn J had pointed out in his judgment that the Tribunal’s decision adverse to the applicant turned significantly on its view of the applicant’s credit and that there was material before the Tribunal on which it could form that view.

8                     The appeal which the applicant wishes to run against the decision of the Federal Magistrates Court has, in my view, no reasonable prospects of success.  The interests of justice do not require that the applicant be given another opportunity to seek review of the decision of the Tribunal on the very grounds relied upon unsuccessfully before Finn J.  For this reason the application for an extension of time within which to seek leave to appeal is granted but the application for leave to appeal from the decision of the Federal Magistrates Court is dismissed.

9                     The applicant is to pay the respondent’s costs fixed at $1500.

Associate:

Dated:              21 February 2005

FILED INCHAMBERS                             

DATE: 11/2/05

SZEKZ

Applicant

V

MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS
Respondent

CHRONOLOGY

BACKGROUND

Applicant born in China                                                                               7 March 1972

Applicant arrived in Australia                                                                       29 November 1994

DIM IA

Application for protection visa lodged                                                           30 August 1995

Delegate's decision                                                                                     29 April 1997

RRT

Application for review lodged                                                                      27 May 1997

RRT hearing                                                                                               9 April 1998

RRT decision dated                                                                                     10 June 1998

FEDERAL COURT - AG58 OF 1998

Application for an order of review lodged                                                     16 July 1998

Orders of Finn J dismissing application with costs                                          26 November 1999

FULL FEDERAL COURT - A104 OF 1999

Notice of appeal lodged                                                                               17 December 1999

Notice of discontinuance filed                                                                      12 May 2000

FEDERAL MAGISTRATES COURT - SYG2872 OF 2004

Application for judicial review lodged                                                           20 September 2004

Directions hearing                                                                                       1 October 2004

Notice of objection to competency filed                                                        8 October 2004

Court book filed and served                                                                         11 October 2004

Orders of Lloyd-Jones FM dismissing application as                                      2 December 2004

an abuse of process, with indemnity costs

FULL FEDERAL COURT - NSD1829 OF 2004

Notice of appeal lodged                                                                               6 December 2004

Directions hearing                                                                                       8 February 2005

Scheduled hearing of application for leave to appeal                                      16 February 2005

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