FEDERAL COURT OF AUSTRALIA

SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 562

SZBCE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGEOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 4 OF 2006

EDMONDS J

1 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed.

2.         The applicant pay the first respondent’s costs on an indemnity basis, fixed in the sum of $1,722.00.

3.         No further application to this Court to review the decision of the delegate of the first respondent dated 12 April 2002 or to review of the decision of the Refugee Review Tribunal handed down on 8 July 2003 be accepted for filing except with the leave of the Court.

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

REASONS FOR JUDGMENT

EDMONDS J:

1                     This is an application for leave to appeal from the judgment of the Federal Magistrates Court (Scarlett FM) dismissing an application for review of a decision of a delegate of the first respondent (‘the Minister’) refusing to grant the applicant a protection visa.   This is not the first time that the applicant has sought judicial review of a decision relating to his application for a protection visa. 

2                     The applicant had previously applied to the Federal Magistrates Court (Driver FM) for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) affirming the decision of the delegate of the Minister and, on the hearing of that application, Driver FM found that there was no jurisdictional error and dismissed the application: SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1017.

3                     The applicant then appealed Driver FM’s judgment and Bennett J, exercising the jurisdiction of the Full Court of this Court, heard and dismissed that appeal: SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697.  The applicant subsequently applied for special leave to appeal to the High Court but that application was dismissed.  It was only then that the applicant applied to the Federal Magistrates Court again seeking review of the delegate’s decision.  Scarlett FM dismissed the application as an abuse of process:  SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1933.  His Honour said (at [9]):

‘The application is an abuse of process.  The application does not show on its face any reasonable cause of action.  There cannot be a reasonable cause of action when a party seeks to litigate or relitigate a matter that has already been litigated and appealed and is over.  Whilst it is put to me that the application is also frivolous as well as vexatious, I am not prepared to find that it is frivolous but I am in no doubt that it is vexatious.  It is vexatious not just because it is an abuse of process of the Court, it is vexatious not just because it seeks to relitigate something that has already been heard and determined, it is vexatious because it seeks to litigate a decision of the delegate of the Minister that has already been reviewed by the Refugee Review Tribunal and it makes no disclosure on its face of any of the previous proceedings.’

4                     His Honour further observed (at [10]):

‘It is an application that purports to be something that it is not.  It has been brought, quite clearly, for an ulterior motive.  It has not escaped my notice that the decision of the High Court of Australia was made on 6th October and this application seeking to start the proceedings again was filed on 26th October.  Quite clearly the applicant has made sure that he commenced these proceedings within 28 days of the last application being dismissed.  This of course allows the automatic reissue of a bridging visa which expires 28 days over an applicant’s next Court date.  It is not difficult to ascertain why this spurious application has been brought, which is to procure the continuation of a bridging visa.’

5                     The respondent Minister submitted:

(1)        No error has been identified in the approach or findings of the Federal Magistrate. 

(2)        The applicant has not sought in any meaningful sense to review the Tribunal’s or delegate’s decisions, the approach of the Federal Magistrate or to particularise any jurisdictional error on the part of the Tribunal or the delegate. 

(3)        The conduct of this proceeding had effectively been a continuation of the abuse identified by the Federal Magistrate. 

6                     I agree with those submissions.  Having regard to the basis upon which the Federal Magistrate dismissed the application, it is clear, in my view, that the judgment below is interlocutory, requiring the leave of the Court for an appeal to be brought from that judgment.  In this regard, see the principles and authorities collected in the judgment of Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543at [3] – [6].  In that case his Honour set out the principles to be applied in considering whether leave to appeal should be granted, in particular, in what might be called extreme cases.  At [11] his Honour said:

‘If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward (the ground of refusal is variously expressed in the cases), there will be:

•          no extension of time within which to apply for leave to appeal; and

•          no grant of leave to appeal; and

•          (assuming contrary to my conclusion expressed above, that Driver FM’s judgment was final rather than interlocutory) no extension of time within which to file and serve a notice of appeal in exercise of a right of appeal.’

7                     He went on to express his reasons as to why, in his view, the applicant had failed at the first hurdle.  In my view, the same applies in the present case.  The application for leave to appeal must be dismissed with costs.

8                     The first respondent submitted that costs should be awarded on an indemnity basis and that a further order should be made to prevent a continuation of the abuse of the Court’s process.  I agree, and there will be orders accordingly.

Associate:

Dated:         16 May 2006