FEDERAL COURT OF AUSTRALIA

SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821

SZDFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2215 of 2005

WILCOX J

9 DECEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for leave to appeal against the decision of Smith FM be dismissed with costs fixed at $700.00.

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

WILCOX J:

1                     This is an application for leave to appeal against a decision of Smith FM given on 8 November 2005.  On that day the magistrate dismissed, as an abuse of process, an application for judicial review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).  That decision preceded a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 4 June 2002. 

2                     I will set out a brief history of proceedings commenced by the applicant. 

3                     In November 1999, the applicant applied for a protection visa.  In December 2000 the delegate refused to grant the protection visa.  In June 2002, the Tribunal upheld the delegate’s decision to refuse the protection visa.

4                     The applicant sought judicial review of the Tribunal’s decision.  On 19 September 2002, there was a hearing before Jacobson J in this Court.  On that day, his Honour dismissed the application with costs.  The applicant appealed against that decision to a Full Court.  On 15 May 2003, the Full Court dismissed the appeal with costs.  The applicant sought special leave to appeal from that decision to the High Court of Australia.  After a hearing on the merits, the application for special leave was refused by Callinan and Heydon JJ.

5                     In April 2004, the applicant made a further application to the Federal Magistrates Court.  This application was dismissed by Raphael FM as an abuse of process.  The applicant appealed to this Court against that decision.  In September 2004, the appeal was dismissed with costs by Beaumont J.  The applicant then sought special leave to appeal to the High Court against Beaumont J’s decision. That application was refused in June 2005.

6                     Following all that, on 8 July 2005, the applicant again sought review in the Federal Magistrates Court.  On this occasion he sought to challenge the decision of the delegate of the Minister that had been the subject of the Tribunal’s review. 

7                     The respondent sought summary dismissal of this application.  The dismissal application was fixed for hearing on 8 October 2005.  The applicant did not appear.  Instead, he sent a medical certificate stating he was ‘unfit to work’ from 7 October to 10 October 2005.  Smith FM thereupon stood over the notice of motion for summary dismissal until 8 November 2005.  The applicant did not appear on that day.  Nor did he provide any excuse, or medical certificate, to explain his non-appearance.  Smith FM heard the respondent’s motion and dismissed the applicant's substantive application as an abuse of process.

8                     As I have said, this is an application for leave to appeal against that order.  Leave should be refused.  The appeal would enjoy no prospect of success because it is obvious that the delegate's decision is now of no significance, having regard to the fact that the delegate's decision was reviewed by the Tribunal.  There would be no possibility of any court, in the exercise of its discretion, intervening to set aside the delegate's decision.

9                     The application for leave to appeal against the decision of Smith FM will be dismissed with costs.

Associate:

Dated:              19 December 2005