FEDERAL COURT OF AUSTRALIA

Applicant S1838/2003 v Minister for Immigration & Multicultural Affairs

[2006] FCA 993

APPLICANT S1838/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD 928 OF 2006

RARES J

11 JULY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALILA

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed with costs.

2. Costs be fixed in the sum of $1,000.

3. The applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 25 May 2000 and handed down on 20 June 2000 or the decision of the respondent dated 28 October 1999 refusing to grant a protection visa without the leave 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

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for leave to file an application for leave to appeal out of time. The application, although bearing date 16 February 2006, was only filed on 15 May 2006. No explanation for that delay has been given, but I will assume in favour of the applicant that some mistake was made in his mind as to the time limits for bringing the application. The affidavit in support of the present application asserts that the Federal Magistrate made a mistake in deciding that the Court did not have jurisdiction to review the matter without identifying what that mistake was.

2                     In a draft notice of appeal which the applicant has also filed with the Court, the grounds taken are that the Federal Magistrates Court erred in law in determining whether the matter was reviewable in that court; that it erred in law in determining that it did not have jurisdiction to review the matter and that it failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. The fourth ground was, ‘I will provide more details later’. When I asked the applicant for the basis of his application, he said that he had no idea what it was. He did not know what the error was; that he had no knowledge of the law and he got help from others.

3                     The applicant told me that he was illiterate and that he needed help from other people. He did not have any documents to give me which explained the case that he may have had provided to him by the other people and accordingly, there is no basis shown as to what possible error there could have been in the decision of Smith FM in Applicant S1838 of 2003 v Minister for Immigration [2006] FMCA 63, which has been advanced before me this morning. Those proceedings came before Smith FM as a further round of litigation brought by the applicant following an unsuccessful challenge to a decision of the Refugee Review Tribunal made on 25 May 2000 and handed down on 20 June 2000.

4                     In the first challenge to that decision which was decided by Scarlett FM on 18 May 2005 (S1838 of 2003 v Minister for Immigration [2005] FMCA 741) his Honour identified that the basic reason why the Tribunal had not accepted the applicant as a credible witness was because it was satisfied that he had made up his story and that in doing so, he had had the assistance of a migration agent, a Mr Serajul Haque at [17].

5                     His Honour said that he was not satisfied that the applicant's hearing difficulties were such that he could not understand the proceedings before the Tribunal and that he was satisfied that the applicant should have been able to understand what the proceedings were about and that appropriate arrangements had been made to consider the fact that he was illiterate [18]. His Honour concluded that the applicant had not proved that he had suffered from such a medical problem that he could not understand the proceedings or present his case properly. No jurisdictional error was established to his Honour, and accordingly, the proceedings were dismissed [19].

6                     The applicant sought to appeal from that decision but when the matter came before Branson J on 21 July 2005, he did not appear and her Honour dismissed the proceedings pursuant to 25(2)B(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). When the proceedings from which the current application were brought before Smith FM, he carefully considered the litigious history. He noted that the new proceedings before him purported to challenge the delegate's decision (see [2006] FMCA 63 [13]-[15]. That is, a wholly impermissible approach: SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224 and the decision of Heydon J on appeal, SZGGS v MIMIA [2006] HCA Trans 352.

7                     The only relevant decision available to be challenged by the applicant is that of the Tribunal on review of the delegate's decision. Federal Magistrate Smith said [16]:

‘In my opinion the submissions of the applicant and his approach to litigation shown in the present matter, indicates that he is a person who brings applications to the Court without any regard to their effect or merits.’

8                     There is, in my opinion, absolutely no substance in the explanations of the applicant in seeking to have his application for review granted. I refuse to grant an extension of time in which to file the application for leave to appeal on the basis that, in my opinion, there is no prospect of success and no injustice. Any such appeal would be an abuse of the process of the Court and doomed to fail: SZATR v Minister for Immigration [2006] FCA 986.

9                     The application for an extension of time seeking leave to appeal from the decision Smith FM given on 17 January 2006 is refused with costs be fixed in the sum of $1,000. I order that the applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 25 May 2000 and handed down on 20 June 2000 or the decision of the respondent dated 28 October 1999 refusing to grant a protection visa without the leave of a Judge of this Court.

Associate:

Dated: 3 August 2006