NAHR v Minister for Immigration & Multicultural Affairs

Background 1 The applicant claims to be a citizen of Bangladesh. He arrived in Australia on 5 October 2000 and made a protection visa application on 15 November 2000. This application was refused by a delegate of the Minister on 3 January 2001. On 19 December 2002, the Refugee Review Tribunal handed down its decision affirming the decision of the delegate. 2 The applicant subsequently sought judicial review of the delegate's decision in the Federal Magistrates Court (Lloyd-Jones FM) and subsequently in the Federal Court of Australia, and ultimately in the High Court of Australia. He was unsuccessful on each occasion. The applicant then in effect recommenced the process of seeking judicial review of the delegate's decision in the Federal Magistrates Court. Understandably Smith FM dismissed that further application on 23 December 2005, holding that the same constituted an abuse of process. Yet the applicant has now sought leave to appeal that latter decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides of course that an appeal should not be brought against an interlocutory judgment unless leave to appeal is first obtained. 3 In determining an application for leave to appeal, counsel for the Minsiter identified the following considerations to be taken into account: (i) whether in all the circumstances the decision is attended by sufficient doubt to warrant the same being reconsidered by the Court; and (ii) whether substantial injustice would result if leave to appeal were to be refused, supposing the decision to be wrong.