SZFYI v Minister for Immigration & Multicultural Affairs

INTRODUCTION 1 This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') on the ground that the application was incompetent.

Background 2 The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 27 August 2001. He made a protection visa application on 25 September 2001, which was refused by a delegate of the Minister on 29 December 2001. On 14 January 2002 the applicant applied for review of that decision in the Refugee Review Tribunal ('the Tribunal'). On 2 October 2002, the Tribunal handed down its decision made on 11 September 2002 affirming the decision of the delegate. 3 The protection visa application was based on the applicant's claims that as a Muslim person of Tamil ethnicity he provided medicines and material for uniforms to an associate in Colombo, Sri Lanka which may have been for the use of the Liberation Tigers of Tamil Elan ('LTTE'). He claimed that his actions were discovered by the Tamil Nadu authorities and he was subsequently arrested and detained and was released on the payment of a bribe. The Tribunal found that the applicant had been issued with a passport and allowed to leave India because he was of no interest to the authorities. The Tribunal also alternatively found that it was not unreasonable for the applicant to relocate within India. Because of this, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason. 4 The applicant subsequently sought judicial review of the Tribunal's decision in the Federal Magistrates Court, this Court and the High Court (see NADD v Minister for Immigration (2003) FMCA 203; NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1438; NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 072). All these applications and appeals were dismissed. The applicant subsequently filed a fresh application in the Federal Magistrates Court (in relation to the Tribunal's decision and in the name of SZFYI) which was dismissed on 22 August 2005 and on 15 November 2005 Jacobson J dismissed an application for leave to appeal that judgment (SZFYI v Minister for Immigration [2005] FMCA 1186; and SZFYI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1654). The applicant then commenced the present proceeding in the Federal Magistrates Court seeking a review of the delegate's decision. 5 Having regard to the principles and authorities referred to by Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [3] - [6], it is clear, in my view, that the most recent judgment of the Federal Magistrates Court was interlocutory. It follows that an appeal from that judgment cannot be brought unless leave to appeal is granted. 6 In determining an application for leave to appeal, the two considerations which are invariably referred to are: (a) whether, in all the circumstances, the decision from which leave to appeal is sought is attended with sufficient doubt to warrant its being reconsidered by the Court; and (b) whether substantial injustice would result if leave were refused supposing that decision to be wrong. 7 The applicant has filed and served a draft notice of appeal. The Minister submits that the draft notice of appeal does not identify, with meaningful specificity, any error in the reasons of the Federal Magistrate (which are not addressed by the draft notice of appeal) or any jurisdictional error in the delegate's decision. It is further submitted that the affidavit deposed to in support of the application for leave to appeal does not identify any ground of appeal which might have any prospect of success if leave to appeal were granted; rather, it invites the Court to enter into impermissible merits review. They (the grounds) do not, it is submitted, create any doubt as to the correctness of the Federal Magistrate's judgment; his Honour was plainly correct to dismiss the application for the reasons that his Honour did. Second, the Minister submits that, even if the Federal Magistrate's decision contained an error (which is not conceded), there is no jurisdictional error in the Tribunal's decision. Accordingly, no substantial injustice would result if leave to appeal were refused. 8 In SZDGN, supra, Lindgren J at [11] said: 'If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward (the ground of refusal is variously expressed in the cases), there will be: · no extension of time within which to apply for leave to appeal; and · no grant of leave to appeal; and · (assuming contrary to my conclusion expressed above, that Driver FM's judgment was final rather than interlocutory) no extension of time within which to file and serve a notice of appeal in exercise of a right of appeal.' In that case, his Honour, for reasons which followed, was of the opinion that the applicant failed at the first hurdle. The applicant's position in the present case is no different. In my view, if I were to grant leave to appeal, there would be no prospect of the appeal succeeding. Moreover, even if I am wrong in this regard, having regard to the many opportunities for judicial review that have been afforded to, and exhausted by, the applicant on previous occasions, it could not be said that substantial injustice would flow from a refusal to grant leave to appeal.