FEDERAL COURT OF AUSTRALIA

NAHR v Minister for Immigration & Multicultural Affairs

[2006] FCA 503

MIGRATION – application for leave to appeal from Federal Magistrates Court – prior history of unsuccessful applications to Refugee Review Tribunal, Federal Magistrates Court, Federal Court and High Court – subsequent further unsuccessful application to Federal Magistrates Court – abuse of process 

NAHR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD 44 OF 2006

CONTI J

5 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Leave be granted nune pro tunc to substitute the name ‘Minister for Immigration and Multicultural Affairs’ for that of the respondent.

2.         The application of the applicant for leave to appeal from the interlocutory judgment of Federal Magistrate Smith given on 23 December 2005 be dismissed.

3.         The applicant pay the Minister’s costs of the application assessed at $1,400.

4.         The Registry of the Federal Court of Australia not accept for filing by or on behalf of the applicant any further process against the Minister without the prior leave in writing of a judge of this Court.

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

Background

1                     The applicant claims to be a citizen of Bangladesh.  He arrived in Australia on 5 October 2000 and made a protection visa application on 15 November 2000.  This application was refused by a delegate of the Minister on 3 January 2001.  On 19 December 2002, the Refugee Review Tribunal handed down its decision affirming the decision of the delegate.

2                     The applicant subsequently sought judicial review of the delegate’s decision in the Federal Magistrates Court (Lloyd-Jones FM) and subsequently in the Federal Court of Australia, and ultimately in the High Court of Australia.  He was unsuccessful on each occasion.  The applicant then in effect recommenced the process of seeking judicial review of the delegate’s decision in the Federal Magistrates Court.  Understandably Smith FM dismissed that further application on 23 December 2005, holding that the same constituted an abuse of process.  Yet the applicant has now sought leave to appeal that latter decision.  Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides of course that an appeal should not be brought against an interlocutory judgment unless leave to appeal is first obtained. 

3                     In determining an application for leave to appeal, counsel for the Minsiter identified the following considerations to be taken into account:

(i)         whether in all the circumstances the decision is attended by sufficient doubt to warrant the same being reconsidered by the Court; and

(ii)        whether substantial injustice would result if leave to appeal were to be refused, supposing the decision to be wrong.

Decision is not attended by sufficient doubt

4                     No written submissions were provided to the Court in support of the application.  Nor did the application identify, with any meaningful specificity, any error in the decision of Smith FM below, or any jurisdictional error in the delegate’s original decision or that of the Tribunal.  Moreover, the affidavit deposed to in support of the application for leave to appeal did not identify any ground of appeal which would have any conceivable prospect of success if leave to appeal was to be granted.  Rather the applicant invited the Court to enter into some form of impermissible merits review based on a handwritten affidavit of 11 January 2005.  The reasons given by Smith FM were not addressed adequately or at all by the draft notice of appeal, and no written submissions were provided by the applicant.  The ‘grounds’ identified seek in substance, as I have stated above, impermissible merits review, and did not distil any conceivably viable error in the reasons for judgment of Smith FM.

5                     Accordingly his Honour was plainly correct in his dismissal of the application for the reasons that his Honour provided.  The present application constitutes plainly an abuse of process. 

Substantial injustice would not result

6                     As to the second consideration even if the Federal Magistrate’s decision contained an error, reviewable or appealable, which is not the case, there was no jurisdictional error in the delegate’s original decision that has been demonstrated.  Accordingly, no substantial injustice would result if leave to appeal was to be refused, particularly in the light of the applicant’s prior history of unsuccessful applications outlined above. 

Conclusion

7                     The application for leave to appeal from the interlocutory judgment of Federal Magistrate Smith given on the 23 December 2005 is therefore dismissed with costs. 

Associate:

Dated:              5 May 2006