FEDERAL COURT OF AUSTRALIA

SZGJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1537

SZGJW v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 1765 of 2005

JACOBSON J

26 OCTOBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          The application for leave to appeal is refused.

2.          The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1.                       This is an application for leave to appeal against the orders and judgment of Federal Magistrate Smith dated 6 September 2005.  On that date, his Honour dismissed an application for judicial review pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (“FMC Rules”) as an abuse of process. 

2.                       On 22 September 2005, the applicant filed an application for leave to appeal in the New South Wales Registry of the court.  The application was supported by an affidavit of the applicant and a draft notice of appeal. 

3.                       Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Smith are interlocutory.

Background

4.                       The applicant is a citizen of Bangladesh who claims to have a well‑founded fear of persecution on the ground of his religion as an Ahmadi of the Qadiyani Sect which is a breakaway sect from Islam. 

5.                       The Refugee Review Tribunal (“RRT”) rejected the applicant's claims in its decision handed down on 16 April 2003 affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa. 

6.                       The proceeding before Federal Magistrate Smith was the second proceeding in which the applicant had sought, unsuccessfully, to challenge the RRTs decision. 

7.                       The learned Magistrate set out the history of the first proceedings at [6] to [12] of his judgment.  The first application for review was dismissed by Federal Magistrate Barnes on 2 August 2004.  An appeal from her Honour's decision was dismissed by Allsop J on 22 December 2004, see NARZ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1696. 

8.                       It is clear that Federal Magistrate Barnes and Allsop J dealt comprehensively with the matter.  Moreover, as Allsop J said at [5], the RRT examined the claims in a comprehensive set of reasons.  Allsop J quoted, inter alia, the following passage from the reasons for judgment of Federal Magistrate Barnes at [6]:-

“The Tribunal found that the applicant's claim failed on its facts.  It was not satisfied that the applicant is or was an Ahmadi of the Qadiyani sect.  It had regard, in particular, to his poor knowledge of that faith, the fact that he had made no attempt to practice the faith in Malaysia between 1994 and 1999 and that despite having been in Australia since 2001, he had made no formal effort to practice the religion or to contact the sect in Australia.” 

9.                       Allsop J concluded at [22] as follows:-

“The claim for a protection visa was rejected by the Tribunal for factual reasons as identified in the reasons of the Federal Magistrate.  The Federal Magistrate dealt with the complaints made about the Tribunal’s reasons in a way which displays no error.  The submissions of the appellant and the notice of appeal do not demonstrate any error in either the Federal Magistrate’s reasons or the reasons of the Tribunal.”

10.                   Special leave to appeal to the High Court was refused by Hayne and Callinan JJ on 5 May 2005.  Their Honours considered that an appeal would have no prospects of success. 

11.                   Federal Magistrate Smith observed at [13] that within a month of the High Court's decision the applicant had filed a second proceeding in the Federal Magistrates Court.  His Honour said that the application appeared “entirely devoid of merit” even without consideration of the prior history. 

12.                   His Honour went on to find at [14] that the judgment of Federal Magistrate Barnes upheld on appeal gave rise to a res judicata or issue estoppel on the question of whether the decision of the RRT is a privative clause decision.  He noted at [15] that the applicant was not able to identify any argument supporting further proceedings or any special circumstances as would prevent the application of an Anshun estoppel.

13.                   As I have said, Federal Magistrate Smith dismissed the application pursuant to Rule 13.10(c) of the FMC rules.  His Honour observed that the history of the proceedings and the applicant's submissions suggested that the applicant would continue to seek to engage the respondent in litigation concerning the administrative decision-making on his visa application “unless further impediments are raised against him”.  Accordingly, he directed the registry not to receive further judicial review applications in relation to the relevant decision of the RRT.  His Honour observed that the court's power to make such an order was upheld in SZDCJ v Minister for Immigration, Multicultural and Indigenous Affairs 2004 212 ALR 581 at [29]. 

Discussion

14.                   The applicant's draft notice of appeal contains six purported grounds.  The notice of appeal is in a form which I have seen on many occasions.  It asserts that the Federal Magistrate erred in failing to “find error of law, jurisdictional error, procedural fairness and relief under section 39D of the Judiciary Act 1903”.

15.                   The notice refers to the decision of the High Court in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 and the decision of this court in SGDB v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 74.  However, it provides no indication of how these decisions have any relevance to the applicant's case. 

16.                   The applicant filed an affidavit in support of his application for leave to appeal.  The affidavit states at [5] to [6] that:

“my judicial review application  is not bared by res judicata & estoppel principle.  I am objecting because my matter is out of those principles.  Actually the matter is Under the UN convention and protocol.  That is an International Law.  I am not satisfied with the Federal magistrates Court summary dismissal of my judicial review application.

I referred to High Court decision to support my current judicial review application.  I have an arguable case.  I am unrepresented. No have barrister or solicitor assists me.”

17.                   The applicant appeared this morning in person.  The only submission he put to me from the bar table was that he wanted an adjournment in order to employ a barrister to assist him with his case but he said that he could not afford to retain a barrister.  He says that there are features of his case which might succeed and that he needs time to obtain legal assistance.

18.                   It does not seem to me to be appropriate to grant an extension of time.  The initial application for review of the decision of the RRT was filed in June 2003.  The applicant appeared in person before Allsop J and has had ample time to obtain legal representation if he wished to do so.  There is nothing to suggest that he would be able to get legal representation.  In any event it seems to me that on a careful consideration of the history of these proceedings there are no prospects of success in any event. 

19.                   The principles upon which leave to appeal is granted are well known.  It is unnecessary to repeat them.  In my view there is no doubt about the correctness of the decision of Federal Magistrate Smith.  The history of the proceedings makes it plain that there would be no injustice in the refusal of leave to appeal in accordance with the principles stated by the court in Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397. 

20.                   Accordingly the orders I will make are that leave to appeal is refused with costs.

Associate:

Dated:              1 November 2005