SZELL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 14 November 2002 the Refugee Review Tribunal ('the RRT') affirmed a decision of the Minister's delegate not to grant the applicant a protection visa. On 23 December 2002 the applicant instituted proceedings in the High Court of Australia seeking an order nisi for the issue of constitutional writs in relation to the RRT's decision. The matter was remitted to the Federal Court of Australia on 7 February 2003 and Selway J thereafter made orders as to the further progress of the matter. On 8 September 2003 Lander J dismissed the application for an order nisi because of non-compliance with the Court's orders as to the progress of the matter. 2 On 23 September 2004 an application for review under s 39B of the Judiciary Act 1903 (Cth) of the RRT's decision was filed in the Federal Magistrates Court. If the decision of the RRT was a privative clause decision, the application to the Federal Magistrates Court was incompetent as it was made well outside the 28 day period allowed by s 477(1A) of the Migration Act 1958 (Cth). On 18 January 2005 Federal Magistrate Lloyd-Jones ordered that the application should be summarily dismissed pursuant to rule 13.10C of the Federal Magistrates Court Rules on the ground that the proceedings were an abuse of the process of that Court. 3 On 4 February 2005 an application for leave to appeal to the Federal Court from the decision of the Federal Magistrate was made. Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') as the judgment of the Federal Magistrate is interlocutory: see SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 per Lindgren J; SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 per Madgwick J. The application is one which may be heard and determined by a single judge: Federal Court Act s 25(2)(a). 4 The affidavit in support of the application for leave to appeal asserts that the applicant is 'unhappy with' the decision of the Federal Magistrate, but does not say why that decision is erroneous beyond asserting that the applicant fears for his life in India because of his support for the Darjeeling Nationalist Party. I asked the applicant this morning if he could identify for me what he said were the errors in the RRT's decision. His response was that the RRT did not believe what he was telling the RRT in relation to his party involvement, yet what he told the RRT was the truth. 5 The grounds on which the Federal Magistrate concluded that the proceedings were an abuse of process are set out in pars 10 - 15 of his Honour's reasons for decision. Those grounds are: first, that the applicant failed to comply with directions given by the Federal Magistrate on 8 October 2004 as to the progress of the matter. Those directions required that the applicant file and serve an affidavit containing any additional evidence upon which he wished to rely by 3 December 2004, and that he should file and serve an amended application with complete particulars of each ground of review by 3 December 2004. Second, that the applicant, when invited to explain his non-compliance with these orders, declined to answer. Third, that the applicant was seeking to re-agitate matters which were, or could have been, pursued in the previous proceedings for an order nisi. Fourth, the Federal Magistrate accepted the submissions made by counsel for the Minister, Ms Gibson, in respect of an abuse of process. 6 Failure to comply with the direction as to the filing of a fully particularised amended application does not lead to the conclusion that the proceedings in which that direction was given are an abuse of process, although non-compliance with the direction would enliven the jurisdiction of the Federal Magistrates Court to dismiss the proceedings for that reason. 7 Similarly, the fact of the previous institution of proceedings in the High Court which were brought to an end for non-compliance with the order of Selway J, does not necessarily lead to the conclusion that these proceedings are an abuse of process. However, the Federal Magistrate appears to have accepted all of the submissions raised by counsel for the Minister on the topic of abuse of process and to have concluded that the cumulative effect of all of those matters lead to a conclusion that the proceedings in the Federal Magistrates Court were an abuse of the process of that court. 8 An applicant for leave to appeal is ordinarily required to demonstrate that in all the circumstances the decision at first instance is attended by sufficient doubt to warrant it being re-considered in the exercise of the appellate jurisdiction of the Court, and that substantial injustice would result if leave were refused supposing the decision to be wrong. The problem with the present case is that the applicant has not identified any reason why leave to appeal should be granted, nor has he established that the appeal would have any realistic prospect of success were leave to be granted. 9 The only matters upon which he has relied impermissibly invite the Court to embark upon a merits review of the RRT's decision. Leave to appeal should be refused because, in the particular circumstances of the case, to grant leave would be an exercise in futility. The order which I make is that the application for leave to appeal be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.