SZDPR v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This matter commenced by way of a notice of appeal filed by the applicant on 2 August 2004. It is a purported appeal from a decision of Federal Magistrate Raphael. His Honour dismissed the applicant's application to set aside or vacate orders which his Honour had made on 8 June 2004. On 8 June 2004, Raphael FM dismissed an application filed in the Federal Magistrates Court on 20 May 2004 for the review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 30 May 2002 and handed down on 20 June 2002. 2 The learned Federal Magistrate recited the history of the matter and noted that the basis of the application to the Federal Magistrates Court was that the Tribunal had not afforded the applicant natural justice or procedural fairness. Federal Magistrate Raphael noted the problem with that argument was that the applicant had told him that he did not appear at the hearing before the Tribunal because he knew that the Tribunal would find against him. The Federal Magistrate concluded at [6]: 'Given that the applicant was the author of his own misfortunes in relation to the first hearing of the application to dismiss and given that I cannot see that there are any prospects of success in his application, and given that his application is, in any event, an abuse of process being an application in respect of a decision that has already been considered by the Federal Court, the Full Federal Court and the High Court of Australia, I am not inclined to make the order requested. I dismiss this application to vacate my original orders.' 3 The notice of appeal contained the following grounds: ' · Federal Magistrates judgment was affected by error of law. · Federal Magistrates failed to established that RRT decision was in breach of section 424A(1) and section 418(3) of the Migration Act. · Federal Magistrates ignore RRT's denial of natural justice.' 4 The Federal Magistrate's decision is an interlocutory decision for which leave to appeal is necessary, as is made clear in Re Luck (2003) 203 ALR 1 at [4] and Wride v Schultz [2004] FCAFC 216 at [15]-[17]. With the respondent's consent, I will treat the purported notice of appeal as an application for leave to appeal. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth)('the Act') provides that an appeal can only be brought from an interlocutory decision of the Federal Magistrates Court if a judge gives leave. The Chief Justice has determined that the appeal from the decision of the Federal Magistrate be heard and determined by a single judge, so I have jurisdiction to hear both the application for leave to appeal and the appeal itself. 5 It is necessary to set out the history of this matter: (a) On 29 November 1979, the applicant was born in Bangladesh. (b) On 12 August 1999, he arrived in Australia. (c) On 21 September 1999, he lodged an application for a protection visa. (d) On 10 November 1999, a delegate of the Minister ('the delegate') gave a decision refusing that application. (e) On 24 November 1999, the applicant lodged an application for review of the delegate's decision. (f) The applicant failed to appear at the hearing before the Tribunal, which was set down for 30 May 2002. (g) On 20 June 2002, the Tribunal delivered its decision. (h) On 10 July 2002, the applicant filed an application for judicial review of the Tribunal's decision. (i) On 23 October 2002, Hill J heard that matter and dismissed it on the same day. His Honour said at [19]: 'For the reasons which led the full court in NADR to a conclusion that the applicant had not shown that a breach of procedural fairness had occurred I am of the view in the present case that the applicant has not made out the case which he sought to advance.' (j) On 15 November 2002, the applicant filed a notice of appeal from that decision. (k) On 21 May 2003, the applicant failed to appear at the hearing of that appeal and the Full Court of the Federal Court dismissed the appeal pursuant to order 52 rule 38A. The applicant did not seek to set aside that order. (l) On 17 June 2003, the applicant filed an application for special leave to appeal to the High Court. (m) On 26 August 2003, the applicant took the step of filing a summary of argument and a draft notice of appeal which was served on 13 October 2003. (n) The applicant failed to appear at the hearing of the application for special leave. The High Court refused the application for special leave on 28 May 2004. (o) On 20 May 2004, shortly prior to the decision of the High Court, the applicant filed an application for judicial review in the Federal Magistrates Court. (p) The respondent filed a notice of motion for summary dismissal of that application. Raphael FM dismissed the applicant's application with indemnity costs. His Honour also made orders: (i) that the applicant be restrained from filing any further applications for review of the decision of the Tribunal without leave of the Court; and (ii) that order does not apply to an application to vacate the order made today or an appeal against this order. (q) The applicant filed an application to vacate Raphael FM's orders by notice of motion filed on 29 June 2004. The Federal Magistrate decided not to vacate the orders. That decision is the subject of the present application for leave to appeal to this court. 6 When the matter came before me this morning the respondent filed a notice of objection to the competency of the appeal. I then stood the matter in the list for hearing later in the day. There was no objection by the applicant to that course. When the matter came on for hearing the applicant appeared in person assisted by an interpreter. 7 The applicant made no substantive submission in relation to the Federal Magistrate's decision. He did refer, without evidence, to the reasons why he did not attend earlier hearings. However, nothing has been put to me as to why the decision of the Federal Magistrate was wrong, nor why the appeal itself has any prospects of success. In light of the applicant's history I cannot but agree with the decision of the Federal Magistrate. 8 In addition, I note the observation of the Full Court of the Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36], that: 'It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court.' Their Honours continued: '…the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted that should be an end of the matter. The resources of the community ought not to be expended on the litigation, more than once, of the same issue.' 9 The Full Court did continue to describe some possible exceptions to that rule but none of those matters have been raised before me today. Nor, indeed, has the applicant raised any reason why these proceedings should not be dismissed as an abuse of process. Accordingly, I propose to refuse the application for leave to appeal. 10 I have been asked by the respondent to make an order that the applicant is prevented from filing any further application for review of the decision of the Tribunal without the leave of this court. The respondent has also sought indemnity costs in a fixed amount of $1,180.00. I am satisfied on the evidence that the respondent's costs are at least $1, 180.00. 11 In the circumstances of this matter I am satisfied that it is appropriate to make the orders sought by the respondent. The applicant is to be prevented from filing any further application for review of the Tribunal decision in this Court without leave. Further, in circumstances where the applicant has not sought to put any matter to this Court in support of his application for leave and in light of the Magistrate's decision, in my view it is appropriate to make the order for indemnity costs in the amount sought. 12 The orders of the Court are: