FEDERAL COURT OF AUSTRALIA

SZAUB v Minister for Immigration and Multicultural Affairs [2006] FCA 977

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

NSD 1082 OF 2006

MOORE J

4 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

3.                  No further application to this Court for review of the delegate’s decision or the Tribunal’s decision be accepted for filing without leave of the Court.

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 a judgment of a Federal Magistrate of 22 May 2006 dismissing the application for judicial review of a decision of the Refugee Review Tribunal of 21 May 2003 as incompetent: SZAUB v Minister for Immigration and Multicultural Affairs [2006] FMCA 733. The Tribunal had affirmed the decision of the delegate of the Minister of 19 June 2002 not to grant the applicant a protection visa. The applicant may require an extension of time to apply for leave to appeal, since an application was not brought within 7 days of what is probably an interlocutory judgment.

2                     In the Federal Magistrate Court, the Minister sought summary dismissal of the applicant's application of 30 September 2005 on several bases. His Honour dismissed the application for judicial review as incompetent on the basis that earlier legal proceedings had conclusively found that the Tribunal decision was free from jurisdictional error and that as a consequence, s 474 of the Migration Act 1958 (Cth) removed any further jurisdiction of the Federal Magistrates Court. The applicant has previously and unsuccessfully sought judicial review of the Tribunal decision in the Federal Magistrates Court: SZAUB v Minister for Immigration & Multicultural Affairs [2004] FCA 633. An appeal against that judgment to this Court was dismissed on 8 November 2004 by Branson J: SZAUB v Minister for Immigration & Multicultural Affairs [2004] FCA 1468 and an application to the High Court for special leave to appeal against her Honour’s judgment was refused on 8 September 2005: [2005] HCATrans 707.

3                     The Minister submits that leave should not be granted because the Federal Magistrate's decision is not attended by sufficient doubt to warrant reconsideration and because substantial injustice would not result if leave were refused. The Minister also submitted that the proceeding was an abuse of process as it can be inferred from the litigation history that the application has been made for the purpose of prolonging the applicant's entitlement to stay in Australia. The Minister seeks an order, in addition to dismissal with costs, that no further application to this Court to review the delegate's decision or the Tribunal's decision be accepted for filing except with leave of the Court.

4                     It is not apparent to me that the Federal Magistrate erred in dealing with the case as he did. The applicant would have no prospects in any appeal were an extension of time and leave granted. Accordingly, the application should be dismissed. Further, an order should be made about filing further process. The applicant has had an adequate opportunity to test whether the Tribunal's decision was infected by jurisdictional error. Any further proceeding is likely to be an abuse of process.

Associate:

Dated: 4 August 2006