SZALV v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT EDMONDS J: 1 Thisis an application for leave to appeal from a judgment of the Federal Magistrates Court (Driver FM) delivered on 5 December 2005. The application before the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') on 3 April 2003 affirming a decision of the delegate of the first respondent ('the Minister') to refuse to grant a protection visa to the applicant. The Federal Magistrates Court dismissed the application. 2 By way of background, the applicant is a citizen of India who entered Australia on 13 October 2001. On 9 November 2001 the applicant applied for a protection (class XA) visa which was refused by a delegate of the Minister on 28 March 2002. The Tribunal affirmed the decision of the delegate on 3 April 2003. 3 The essence of the applicant's claim before the Tribunal was that he feared persecution because of his Muslim faith. He claimed that he was attacked by Hindu fanatics. The Tribunal found that the applicant was not a credible witness and that much of his evidence was implausible. The Tribunal concluded that the applicant did not have a well-founded fear of persecution. 4 The applicant has challenged the Tribunal's decision on a previous occasion in this Court. On 14 October 2004 Bennett J dismissed an appeal from a judgment of the Federal Magistrates Court (Driver FM) made on 23 April 2004 being SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370. The applicant unsuccessfully sought special leave to appeal to the High Court from the judgment of Bennett J. The Federal Magistrate dismissed the present application as incompetent on the basis that, having previously determined that the Tribunal decision was a privative clause decision which was affirmed on appeal by Bennett J, he, the Federal Magistrate, no longer had jurisdiction to consider whether the Tribunal decision was or was not a privative clause decision. 5 In support of the application for leave to appeal the applicant filed an affidavit which states, relevantly: '[The Department of Immigration and Multicultural and Indigenous Affairs] and [The Tribunal] was acted on a bad faith in relation to my application. There has been a constructive failure of jurisdiction by the Delegate, failed to address the correct legal question to me by not applying himself to all the issues he was required to consider before making decision. The decision was made in breach of natural justice. … I filed judicial review application before the FM. The honourable FM did not consider my application because my judicial review application was not competent. I am not satisfied with the decision. The application is not vexatious nor and abuse of process. I was unrepresented and no barrister or solicitor assists me.' 6 On the hearing of his application the applicant made short submissions going to the merits of his case as agitated before the Tribunal. On the basis of such merits he submitted that he should be given an opportunity to appeal. 7 Having regard to the basis upon which the Federal Magistrate dismissed the applicant's present application for review, it is, in my view, clear that the judgment of the Federal Magistrates Court is interlocutory. If authority be needed for this, one need do no more than refer to the principles and authorities collected in the judgment of Lindgren J of this Court in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [3] - [6]. The judgment being interlocutory, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 8 The principles which govern the grant of leave to appeal have been so often and regularly considered that they provide a well-trodden path of guidance. Most often quoted authority in this area is Niemann v Electronic Industries Ltd (1978) VR 431 where two fundamental principles were articulated: the first, whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 9 The Minister observed that the applicant had not filed and served a draft notice of appeal and the extracts I have referred to from the applicant's supporting affidavit and his oral submissions on the hearing of this application do not provide any basis for drawing a conclusion that the judgment of the Federal Magistrates Court is in any doubt, let alone sufficient doubt, to warrant its reconsideration by this Court. 10 The Minister further submitted that even if there was any doubt about the Federal Magistrate' judgment, no substantial injustice would result if leave to appeal were refused as the applicant has already had the decision made by the Tribunal reviewed by that court and on that occasion the Federal Magistrate found that the Tribunal's decision disclosed no jurisdictional error. 11 That substantive decision has also been the subject of an appeal, as indicated above, and was dismissed by Bennett J of this Court. Special leave to appeal from her Honour's decision was refused.