SZGIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1539 (25 October 2005)

SZGIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1539

SZGIE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1717 of 2005

JACOBSON J
25 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1717 OF 2005

BETWEEN:	SZGIE APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	25 OCTOBER 2005
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1717 OF 2005

BETWEEN:	SZGIE APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	25 OCTOBER 2005
PLACE:	SYDNEY

1. This is an application for leave to appeal against the orders and judgment of Federal Magistrate Smith dated 1 September 2005. On that date the learned Magistrate dismissed an application for judicial review pursuant to rule 13.10(c) of the Federal Magistrates Court Rules ("FMC Rules").

2. On 16 September 2005 the applicant filed an application for leave to appeal. The application was accompanied by an affidavit and draft notice of appeal. Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Smith are interlocutory.

3. The applicant is a citizen of Bangladesh. He is a Hindu who claims to have a well-founded fear of persecution on the ground of religion. He claims that he was targeted by Muslim fundamentalists, that false charges were brought against him and that attempts had been made to obtain moneys from him by extortion.

4. In its decision handed down on 17 September 2002 the Refugee Review Tribunal ("RRT") affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection visa.

5. The proceeding before Federal Magistrate Smith was the second occasion on which the applicant has sought unsuccessfully to challenge the decision of the RRT. His Honour recounted the history of the proceedings at [4] to [9]. It is to be noted that his Honour observed at [3] that the RRTs reasons show a careful assessment of the applicant's claims in rejecting the basis for his fears of return to Bangladesh.

6. The first application for review was heard by Federal Magistrate Raphael who dismissed it on 23 January 2004. An appeal was dismissed by Hely J on 26 July 2004. The applicant was represented by counsel before the Federal Magistrate and on appeal. It is clear that the matter was dealt with comprehensively.

7. Special leave to appeal to the High Court was refused on 18 August 2004. McHugh and Heydon JJ considered that an appeal would have no prospects of success.

8. Federal Magistrate Smith was of the view that the previous judgment of the Federal Magistrates Court upheld on appeal provided a complete answer to the present proceeding which he said was doomed to failure on principles of res judicata or issue estoppel; see at [10]. Moreover, his Honour considered that any fresh grounds were barred by Anshun estoppel; see at [11]. He referred to Wong v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 242.

9. The learned Magistrate observed that additional documents filed by the applicant did not identify any grounds which could not reasonably have been raised in the previous proceeding.

10. As I have said, his Honour dismissed the applicant pursuant to rule 13.10(c) of the FMC Rules. He made orders directing the Registry not to receive further applications for judicial review in relation to the decision of the RRT without the leave of the court. He observed that the court's power to make such an order was upheld in SZDCJ v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 212 ALR 581 at [29].

11. The applicant's draft notice of appeal contains six purported grounds which do not indicate any error in the decision of the RRT or in the judgment of Federal Magistrate Smith. Nor does the applicant's affidavit add anything to the application.

12. On 24 October 2005 my associate received a written notification from the applicant stating that he is "in medical rest" and that he would be unable to attend the hearing fixed for 2.15 pm today. The letter requests the appeal to be considered "with my paperwork". It is clear from this that the applicant consents to the matter being dealt with on the papers.

13. The principles upon which leave to appeal is granted are well known; it is unnecessary to repeat them. In my view the decision of Federal Magistrate Smith is not attended by any doubt. The history of the proceedings shows that there would be no injustice in refusing leave supposing the decision to be wrong; see Décor Corporation v Dart Industries Inc (1991) 33 FCR 397.

14. Accordingly, it seems to me, having carefully considered the decision of the learned Federal Magistrate and the record of the proceedings that the application for leave to appeal must be dismissed.

15. The Minister's solicitor has indicated that she will seek indemnity costs and I will now turn to the argument about costs.

16. The Minister's solicitor has put to me that Federal Magistrate Smith ordered the applicant to pay costs on an indemnity basis because the proceedings were characterised as an abuse of process. She pointed out that in written submissions for the Minister served on the applicant on 18 October 2005 the applicant was notified that if leave to appeal should be refused indemnity costs would be sought.

17. In my view those same considerations warrant an order for indemnity costs on the present application. It is noteworthy that the applicant was represented by counsel in the first application before Raphael FM and Hely J. He is unrepresented in the present application but he has been unable to point to anything to demonstrate that the decision of Federal Magistrate Smith was attended by any doubt. This was drawn to his attention in the Minister's written submissions.

18. I think in those circumstances that it is appropriate to order indemnity costs. I will fix the costs pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules in the sum of $1,200. Such an order is warranted in the present case to avoid further costs being incurred upon an assessment of the costs to be awarded.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Applicant:	No appearance for the applicant

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	25 October 2005

Date of Judgment:	25 October 2005