FEDERAL COURT OF AUSTRALIA

SZCWJ v Minister for Immigration & Citizenship [2008] FCA 432

Federal Magistrates Courts Rules 2001 r. 44.12(1)

Migration Act 1958 (Cth)

Décor Corporation Pty Ltd and Another v Dart Industries Incorporated (1991) 33 FCR 397

Jayasinghe v Minister for Immigration and Ethnic Affairs and Another [1997] FCA 551, (1996) 76 FCR 301

SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989

SZASP v Minister for Immigration and Citizenship [2007] FCA 771

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242

Walton v Gardiner (1993) 177 CLR 378

Rogers v The Queen (1994) 181 CLR 251

SZCWJ, SZCWK and SZCWL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2446 of 2007

REEVES J

6 MARCH 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The applicants’ application for leave to appeal be dismissed.

2.                  The first and second-named applicants pay the first respondent’s costs in an unquantified sum.

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

REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT

1                     This is an application for leave to appeal the decision of Emmett FM dated 27 November 2007.  In her decision Emmett FM dismissed the applicants’ application to review the Refugee Review Tribunal’s decision of 19 June 2007 under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.

2                     Her Honour also ordered that the applicants would need to obtain the leave of the court to file any further applications seeking to review various decisions which she specified.

3                     The draft notice of appeal filed by the applicants gives two proposed grounds of appeal.  The first is that the first respondent, namely the Minister, denied the applicants natural justice because, it is said, the first respondent should have put to the applicants certain country information which was adverse to the applicants’ case.

4                     The second ground of appeal is that the second respondent, namely the Refugee Review Tribunal, failed to comply with section 425, which is said to be a mandatory provision of the Migration Act 1958 (Cth), in failing to invite the applicants to attend to give evidence and present argument in relation to issues arising out of the decision under review.

5                     Neither of these proposed grounds of appeal appears to be directed to the decision of the Federal Magistrate which is the subject of the application for leave to appeal.  Furthermore, neither of them seeks to attack the procedural orders that the Federal Magistrate made.  I therefore assume that even though the proposed notice of appeal is not directed to the Federal Magistrate’s decision, given its form, it intends to put in issue the substantive issues before the Federal Magistrate rather than seek leave to appeal the procedural orders made by the Federal Magistrate that the applicants would need to seek leave before filing any further applications for review.  I will proceed on that basis. 

6                     At the hearing before me two of the three applicants appeared in person with the assistance of an interpreter.  They did not have any legal representation.  Ms Knight appeared for the first respondent.  On an application for leave to appeal, the applicant is required to establish that the decision in question is attenuated with sufficient doubt to warrant the grant of leave to appeal and that substantial injustice will result from a refusal to grant leave to appeal: see Décor Corporation Pty Ltd and Another v Dart Industries Incorporated (1991) 33 FCR 397 at 398 to 399.

7                     On the question whether leave to appeal is justified, the applicants, firstly, did not avail themselves of the opportunity to make written submissions, and, at the hearing before me, they did not make any oral submissions of relevance. For the Minister’s part, Ms Knight filed written submissions and, at the hearing before me, made oral submissions. Her submissions were to the following effect.

8                     Firstly, she took me to the extensive history of litigation between the applicants and the tribunal and other bodies or courts.  She then referred me to the Federal Magistrate’s decision and submitted that there was no error in the Federal Magistrate’s decision and she therefore submitted that since the decision was not attenuated by sufficient doubt, indeed any doubt, the application for leave to appeal should be dismissed.

9                     The crux of the Federal Magistrate’s decision is contained in paragraph 13 of her reasons.  There she sets out and agrees with the written outline of submissions submitted before her by the first respondent, the Minister.  In those submissions the Minister submits that the Refugee Review Tribunal was correct in finding that, having previously conducted a proper review of the delegate’s decision, it had already discharged its functions under the Migration Act 1958 (Cth).

10                  Those submissions referred to the two decisions of this court on that point.  They are Jayasinghe v Minister for Immigration and Ethnic Affairs and Another [1997] FCA 551, (1996) 76 FCR 301, particularly at page 311, and SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989 at [6].  I have read those decisions and the other decisions referred to therein.  I have considered the reasoning process of the Federal Magistrate based upon the submissions put before her by the Minister and in my view there is no error apparent in those reasons.

In other words, in my view, the Federal Magistrate was correct in her conclusion that the Refugee Review Tribunal was correct in its conclusion that having previously conducted a proper review of the delegate’s decision, it had already discharged its functions under the Migration Act. In my view, that conclusion was not attenuated by any error, certainly not sufficient error, to justify leave.  I would therefore refuse leave to appeal on the ground that the Federal Magistrate’s decision was not attenuated by sufficient doubt to justify leave.

11                  In case I am wrong about my assumption that the appeal is only directed to the substantive issues raised, namely the attempt to review the Refugee Review Tribunal’s decision before the Federal Magistrate and that it is, in fact, also intended to apply to the procedural orders made by the Federal Magistrate, I would add these observations. 

12                  If leave to appeal is being sought in relation to those orders, they involve discretionary decisions relating to matters of practice and procedure.  A court is usually particularly reluctant to interfere with such decisions, and before it does, some clear error of principle needs to be established and substantial injustice needs to be shown.  The history of the applicants’ various applications for review of the delegate’s decision and the Refugee Review Tribunal’s decision is set out at paragraphs [6] to [10] inclusive of the Federal Magistrate’s decision.

13                  It is apparent from that history that the applicants have used the single decision of the delegate made on 24 June 2003 to seek reviews in the Refugee Review Tribunal, the Federal Magistrates Court, the Federal Court and, indeed, the High Court.  Having failed in that attempt they returned to the Refugee Review Tribunal in the middle of last year and attempted to apply again to have the Refugee Review Tribunal review the same decision of the delegate.

14                  The application for leave to appeal to this court is a part of a second round of reviews, if I can describe it in that way, of the delegate’s decision.  The crux of the Federal Magistrate’s decision on this aspect is contained in paragraphs [15] and [16] of her reasons for decision.  She earlier points to the decision of this court in SZASP v Minister for Immigration and Citizenship [2007] FCA 771 where Justice Moore makes various observations about applications that involve an abuse of process of the court.

15                  Her Honour also refers to a number of other decisions including the decision of the Full Court of this Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at 36 and three other decisions including the High Court’s decisions in Walton v Gardiner (1993) 177 CLR 378and Rogers v The Queen (1994) 181 CLR 251.  I have considered the magistrate’s reasoning process leading to her decision to impose the orders requiring leave before the applicants file any further applications. I have also considered the cases that she has referred to. I am unable to detect any error in that reasoning process, let alone clear error of principle, or any miscarriage of the Federal Magistrate’s discretion in making those orders.

16                  For these reasons, if this application for leave to appeal is also directed to the procedural orders made by the Federal Magistrate, I would not grant leave.  I therefore order that the applicants’ application for leave to appeal be dismissed.

Associate:

Dated:         6 March 2008