SZFDL v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This matter was called outside the Court. There was no appearance in this matter. This is an application for leave to appeal from a decision of Lloyd-Jones FM given on 6 April 2006. The application was filed out of time, on 11 May 2006, and seeks an extension of time in which to make the application for leave to appeal. The application before his Honour sought to challenge a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs following an unsuccessful round of litigation in which the applicant had sought to challenge a decision of the Refugee Review Tribunal on a review of that decision. 2 The Tribunal's decision was made on 30 September 2004 and handed down on 26 October 2004. It affirmed a decision of a delegate of the Minister made on 16 April 2004 to refuse to grant a protection visa to the applicant. The applicant originally challenged the Tribunal's decision by way of proceedings for judicial review before the Federal Magistrates Court (SZFDL v the Minister for Immigration [2005]) FMCA 899). On 23 June 2005, Scarlett FM dismissed that application. He held that having considered the material before him, he was satisfied that the applicant had attended the hearing before the Tribunal and had given oral evidence contrary to the applicant's submission that the Tribunal had not asked him questions at [13]. 3 His Honour said that the applicant's case before the Tribunal was unsuccessful because it did not accept all of his assertions and, in particular, it did not accept that the applicant faced harm in the past from Mongolian authorities by reason of his political opinion, or that he faces harm in the future if he returns to Mongolia. His Honour found there was no evidence of bad faith or bias on the part of the Tribunal, and that he was satisfied that there was evidence upon which the Tribunal was entitled to rely on reaching the findings that it did. Accordingly, his Honour held he could not find any jurisdictional error and the application should be dismissed at [18]. 4 The applicant appealed from that decision, and on 21 September 2005 Madgwick J dismissed the appeal (SZFDL v Minister for Immigration and Multicultural and Indigenous Affairs [2005]) FCA 1419). His Honour said that the material before him suggested no error on the part of the Federal Magistrate in dealing with the material before him and that insofar as any further matters were raised in the appeal, there was no substance in them at [8]. That led the applicant to seek to bring the proceedings challenging the delegate's decision that Lloyd-Jones FM dismissed on 6 April 2006. 5 His Honour held that the present application was an abuse of the process of the Federal Magistrates Court and it was appropriate to dismiss it summarily. I agree. It was a plain abuse of the process of the Court. It is not open, in proceedings of this kind, where an applicant has already applied to the Refugee Review Tribunal for his or her matter to be the subject of a review, to contend that the delegate's decision has any further validity in law following the decision of the Tribunal: see SZGGS v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224 and Heydon J's decision dismissing the summons seeking to appeal from that decision (SZGGS v MIMIA [2006] HCA Trans 352). 6 The proceedings before me require an extension of time for leave to appeal. No explanation has been given by the applicant for his delay. In the affidavit supporting the application for leave to appeal, sworn 27 April 2006 but only filed on 11 May 2006, he simply says that he was 'deprived of receiving procedural fairness as the Tribunal was influenced by the contradictory information. The Honourable trial Judge erred in considering this issue'. These are utterly specious grounds that seek to raise an issue that he has already had a full opportunity to ventilate on appeal. I am of the opinion that the proceedings are a clear abuse of the process of this court: see SZATR v Minister [2006] FCA 986. 7 In my opinion, the application has no prospects of success, and that there would be no injustice done by refusal of an extension of time, or leave to appeal. Accordingly, the application is dismissed with costs which I fix in the sum of $1,400. I order that the applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 30 September 2004 and handed down on 26 October 2004 or the decision of the delegate of the respondent dated 16 April 2004 refusing to grant a protection visa without the leave of a Judge of this Court. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.