FEDERAL COURT OF AUSTRALIA

SZENE v Minister for Immigration and Multicultural Affairs [2006] FCA 662

MIGRATION – application for leave to appeal from orders made by Federal Magistrate dismissing applicant’s application for review of decision of Minister’s delegate refusing applicant protection visa – decision of Minister’s delegate previously affirmed by Refugee Review Tribunal – application for review of decision of Tribunal previously dismissed by judge of Federal Court and Full Court of Federal Court – application for special leave to appeal to High Court also previously dismissed.

Held – where Tribunal conducts full merits review of decision of Minister’s delegate and applicant given every opportunity to present his or her case, decision of delegate subsumed in decision of Tribunal – application for leave to appeal dismissed.

Federal Magistrates Court Rules 2001, Pt 13 r 13

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth), s 415

NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539, referred to

Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418, referred to

SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821, referred to

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, referred to

SZENE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 396 of 2006

BESANKO J 

10 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

(1)       The title of the respondent is to be amended to delete the words ‘and Indigenous’.

(2)       The application for leave to appeal is dismissed.

(3)       The applicant is to pay the respondent’s costs on an indemnity basis fixed in the sum of $865.00.

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 from orders made by a Federal Magistrate on 13 February 2006.  The application is dated 28 February 2006 and is supported by an affidavit and a draft notice of appeal.  The orders made by the Magistrate were as follows:

‘(1)      That the application for judicial review filed on 13 October 2005 be dismissed on the grounds that:

           (i)         pursuant to part 13.10(c) of the Federal Magistrates Court Rules 2001 the proceedings are an abuse of process; and, in the alternative

          (ii)         pursuant to part 13.10(a) of the Federal Magistrates Court Rules 2001 the application fails to disclose a reasonable cause of action; and, in the alternative

          (iii)        pursuant to section 13.10(b) of the Federal Magistrates Court Rules 2001 the proceedings are frivolous or vexatious.

(2)       That no further application by the applicant to review the decision of the delegate of the respondent dated 22 June 1999 refusing his application for a protection visa or the decision of the Refugee Review Tribunal handed down on 19 December 2001 be accepted for filing except with leave of the court.

(3)       That the applicant pay the first respondent’s costs on an indemnity basis fixed in the sum of $2900.’

2                     The orders were made on an application by notice of motion brought by the Minister for Immigration and Multicultural Affairs (‘the Minister’).  The Minister sought the dismissal of the proceedings issued in the Federal Magistrates Court of Australia by the applicant and relied on various rules of the Federal Magistrates Court Rules 2001 (Pt 13 r 13.10(a), (b) and (c)).  The proceedings issued by the applicant that were the subject of the Minister’s application were an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth) seeking the review of the decision of a delegate of the Minister whereby the applicant was refused a protection visa. 

3                     The matter has a long history which is relevant to the present application and which I summarise as follows:

1.         The applicant is a citizen of Bangladesh who arrived in Australia on 21 April 1999.  On 20 May 1999 he lodged an application for a protection (class XA) visa.

2.         On 22 June 1999 a delegate of the Minister refused the application.

3.         On 29 November 2001 the Refugee Review Tribunal (‘the Tribunal’) affirmed the delegate’s decision.  The decision of the Tribunal was handed down on 19 December 2001.

4.         On 16 January 2002 the applicant issued proceedings in the Federal Court seeking a review of the decision.

5.         The application for review was dismissed by Gyles J on 30 April 2002:  NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539.  On 25 November 2002 the Full Court dismissed an appeal from that decision: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418.

6.         Two applications for special leave to appeal to the High Court did not proceed.  The first was deemed to be abandoned and the other was dismissed.

7.         On 5 October 2004 the appellant lodged a second application for the review of the Tribunal’s decision in the Federal Magistrates Court, but that application was subsequently discontinued.

8.         On 13 October 2005 the applicant lodged his current application for judicial review in the Federal Magistrates Court to review the delegate’s decision and that application was dismissed on 13 February 2006.

4                     The Magistrate said that the applicant’s application challenges the delegate’s decision and she said it was doomed to fail because, among other things, the decision of the delegate was subsumed in the decision of the Tribunal.

5                     I do not think that the applicant’s proposed appeal enjoys any reasonable prospect of success.  This case is similar to the case which came before Wilcox J in SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821.  The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344).  This Court found that the decision of the Tribunal was in no way affected by jurisdictional error.  The delegate’s decision is now of no significance having regard to the fact that it was reviewed by the Tribunal.

6                     I think that in view of the history of this matter as I have outlined it, the order prohibiting without leave the filing of a further application to review the decision of the delegate and the decision of the Tribunal is justified.

7                     The application for leave to appeal is dismissed.

Associate:

Dated:              31 May 2006