FEDERAL COURT OF AUSTRALIA

SZCOT v Minister for Immigration and Multicultural Affairs [2006] FCA 1313

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

NSD 1399 OF 2006

MOORE J

5 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The purported appeal be dismissed.

3.                  The Refugee Review Tribunal be added as a respondent.

4.                  The applicant pay the first respondent’s costs fixed in the sum of $1,000.00.

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

REASONS FOR JUDGMENT

1                     This purports to be an appeal against a judgment of a Federal Magistrate of 11 July 2006 dismissing as an abuse of process an application filed in that court on 6 March 2006: see SZCOT v Minister for Immigration and Anor [2006] FMCA 1082 . The application filed on 6 March 2006 principally sought to challenge a decision of the Refugee Review Tribunal of 15 February 2006 and that of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant the applicant a protection visa on 15 May 2001.

2                     The Federal Magistrate’s decision was made against a background where the applicant had previously sought review of the delegate’s decision before the Refugee Review Tribunal, differently constituted, and it had affirmed the delegate’s decision (RRT reference N01/39059) on 12 February 2003. That decision of the Tribunal was the subject of an unsuccessful application for judicial review to this Court and a further application for judicial review to the Federal Magistrates Court which was dismissed as incompetent: NALB v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 614) and SZCOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 630. The applicant then sought leave to appeal against the Federal Magistrate’s decision, unsuccessfully and applied, unsuccessfully to the High Court for special leave to appeal against the Federal Court judgment refusing him leave to appeal: SZCOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1771 and SZCOT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 630.

3                     The Tribunal on the second occasion indicated it had no jurisdiction to engage, in effect, for the second time in the review process; firstly, on the basis that the application for review was out of time and secondly, it had already exhausted its powers. The Federal Magistrate indicated, in my view correctly, that that decision was open to the Tribunal. It is not apparent to me that any error attended the decision of the Federal Magistrate dismissing the application filed on 6 March 2006 as an abuse of process.

4                     Leave is necessary and I propose to refuse to grant leave to appeal on the basis that any appeal would be doomed to fail. I dismiss the application for leave and, for completeness, dismiss the purported appeal with costs fixed in the sum of $1,000.

Associate:

Dated: 23 October 2006