FEDERAL COURT OF AUSTRALIA

SZFEA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 634

Federal Magistrates Court Rules Rule 13.10(a)

Re Luck (2003) 203 ALR 1 cited

SZFEA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 813 OF 2005

HELY J

8 AUGUST 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Pakistan who claimed to fear persecution in Pakistan arising out of attempts by his former Kuwaiti employer to extort money from him.  His claim for a protection visa failed before the Refugee Review Tribunal (‘the RRT’) essentially because he failed to satisfy the RRT that the harm which he feared had arisen for a Convention reason, or that the Pakistani authorities were unable or unwilling to afford him protection.

2                     Federal Magistrate Nicholls dismissed the application for judicial review under Rule 13.10(a) of the Federal Magistrates Court Rules.  An order for summary dismissal under that rule is interlocutory in character, hence leave to appeal is required before an appeal can be competently lodged (see Re Luck (2003) 203 ALR 1).

3                     On 25 May 2005 the applicant lodged a purported notice of appeal from the Federal Magistrate’s decision.  At a directions hearing on 21 June 2005 the applicant requested that the purported notice of appeal be treated as an application for leave to appeal and the respondent consented to the adoption of that course.  On that occasion I directed that the applicant file and serve an outline of submissions as to why leave to appeal should be granted on or before Thursday 21 July 2005.  No such submissions have been filed.  Nonetheless, I invited the applicant this morning to tell me why leave to appeal should be granted.  In particular, I invited him to explain to me how it is that he says that the Federal Magistrate erred in coming to his decision.

4                     In response, the applicant told me that he relied in particular on ground one contained in the Amended Application filed in the Federal Magistrates Court.  In particular the applicant’s complaint is that the RRT failed to properly apply s 91R of the Migration Act 1958 (Cth).  He was unable to explain to me in what way the RRT improperly applied s 91R, nor could he explain how the Federal Magistrate erred in rejecting his contention to that effect when the matter was before his Honour.

5                     The Federal Magistrate summarily dismissed the application for review because in his Honour’s view it was plain and obvious that the grounds of review put forward by the applicant were unarguable and that his case was a hopeless one.  The Federal Magistrate thus applied the correct test for summary dismissal.

6                     I have read the RRT’s decision as well as the reasons for decision given by the Federal Magistrate.  Leave to appeal should be granted if the applicant has an arguable case or can demonstrate that there is some issue which is worthy of consideration by an appellate court.  I agree with the Federal Magistrate’s assessment that the applicant’s case is a hopeless one.  Nothing has been put to me by the applicant which would suggest to the contrary.  In those circumstances, it would be futile to grant leave to appeal as any appeal is doomed to failure.

7                     The application for leave to appeal is dismissed with costs and the notice of appeal is dismissed as incompetent.

Associate:

Dated:              18 August 2005