FEDERAL COURT OF AUSTRALIA

SZHAW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1657

SZHAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1949 OF 2005

GYLES J

14 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1                     The application for leave be dismissed. 

2                     The applicant is to pay the first respondent's costs fixed at $1,000.00.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is a matter in which a notice of appeal was filed from a judgment of the Federal Magistrates Court of Australia delivered on 13 October 2005 (SZHAW v Minister for Immigration & Anor [2005] FMCA 1583)which dismissed an application to it seeking review of a decision of the Refugee Review Tribunal handed down on 5 February 2002 by which the application was dismissed as an abuse of process or, alternatively, was not competent.  Orders were made restraining any further application and an order for costs was made. Those are interlocutory orders and the appeal was therefore incompetent when it commenced.  However, it has been ordered that the notice of appeal stand as an application for leave to appeal.  Despite an order that submissions be filed before this hearing, none have been received.

2                     I do not propose to set out all the circumstances of the case or the full chronology of events, which are reproduced in the decision of the learned Federal Magistrate.  Suffice to say that the proceeding in the Federal Magistrates Court was the third substantive proceeding seeking to challenge the one Refugee Review Tribunal decision.

3                     The applicant for leave has not pointed to any appealable error in the manner in which the learned Federal Magistrate dealt with the application.  The only two points that he has made orally today were, firstly, that he was caught up in what might be called the Clisby saga.  So far as that is concerned, whatever the true position may be, the fact is that the first challenge to the decision of the Refugee Review Tribunal had been made in this Court and dismissed by Emmett J.  The High Court proceedings which followed thereafter and which involved Mr Clisby post-dated that dismissal.  It itself was dismissed.

4                     The other point that the applicant for leave seeks to make is that in paragraphs 30 and 31 of the decision below reference is made to a two year delay.  It is contended that, during part of that time, the Minister was considering submissions made on behalf of the applicant.  Whilst, if correct, that might mean that the delay was less serious than might at first sight appear, that delay was merely one aspect of the matter and not, in my opinion, crucial to the decision.  In any event, the delay was objectively and clearly very substantial.

5                     In my opinion, there is no case established at all for thinking that there would be any bona fide ground of appeal if leave to appeal were granted. Indeed, it is fair to describe this application, as was the original application in the Federal Magistrates Court itself, an abuse of the process of the Court.

6                     The application for leave is dismissed.  I order that the applicant pay the first respondent's costs fixed at $1,000.00.

Associate:

Dated:              17 November 2005