Leave application
6 The test of whether leave to appeal is granted or refused has been put on the dual bases of whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [9].
7 If the only basis upon which it was put that the applicant's application in the show cause proceedings below should be dismissed was the basis upon which her Honour so concluded, then, in my view, in the face of the recent decision of a Full Court of this Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, there would be sufficient doubt as to the correctness of her Honour's decision to warrant a grant of leave. In that case the Full Court (Gyles, Jacobson and Buchanan JJ) held that for the purposes of s 477 of the Act actual notification to an applicant of a decision of the Tribunal must be accomplished by physical delivery of a written statement prepared by the Tribunal in accordance with s 430(1) to the applicant personally. In the present case, there was no evidence that that ever occurred.
8 On the other hand, as indicated in [4] above, it was also submitted that the applicant's application below should be dismissed on the ground, amongst others, that it was an abuse of process: para 13.10(1) of the Rules. This submission was repeated on behalf of the Minister on the leave application in the following way.
'The Applicant pleads one ground in his draft notice of appeal, namely that the Tribunal was biased. The Applicant refers to a transcript of the Tribunal hearing, in particular where the Tribunal member tells the Applicant that he had great difficulty believing the Applicant's story. This statement from the Tribunal was made after considerable questioning of the Applicant regarding his claims. The Tribunal did not have a closed mind. Its findings on credibility were open to it on the evidence before it. Accordingly, any allegation of bias cannot be made out.
The First Respondent submits that in any event, the Tribunal decision has been reviewed by the Federal Magistrates Court, the Federal Court and the High Court. Having regard to the Applicant's extensive litigation history as set out in the affidavit of Andrea Maree Mansour, the First Respondent submits that the application for leave to file a notice of appeal in this court seeking review of the same Tribunal decision constitutes an abuse of process.'
9 In his written submissions the applicant stated that his grounds of appeal were bias and natural justice although it is clear from those submissions that it is one ground not two - 'the Tribunal is required to accord natural justice [and] must act without bias'. This allegation was fully dealt with by Raphael FM in the 2004 proceedings, S1430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 808 at [13] although there his Honour equated the allegation of bias to an allegation of lack of procedural fairness rather than a failure to accord natural justice. This allegation was also referred to by Tamberlin J on appeal in S1430 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 210 at [6].
10 In my view, having regard to the previous proceedings, these current proceedings are an abuse of process and had her Honour not dismissed them on the ground that she did, she would have been entitled to do so on this ground. Moreover, even assuming such a decision would have been wrong, I do not think substantial injustice would result if leave were refused. The applicant has had more than sufficient opportunities to undertake judicial review of the Tribunal's decision and he has fully availed himself of these opportunities; and he has failed on each occasion. Such failure does not warrant a grant of leave to avail him of a further opportunity.
11 The application for leave must be refused with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.