SZGPT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1829 (7 December 2005)

Last Updated: 15 December 2005

FEDERAL COURT OF AUSTRALIA

SZGPT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1829

SZGPT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2185 OF 2005

GRAHAM J

7 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2185 OF 2005

BETWEEN:	SZGPT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	7 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal, filed 14 November 2005, be dismissed.

2. The Applicant to pay the Respondent’s costs, fixed in the agreed sum of $1200.

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 2185 OF 2005

BETWEEN:	SZGPT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GRAHAM J
DATE:	7 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 What is presently before the court is an application for leave to appeal from the judgment of a Federal Magistrate given on 26 October 2005. That application was filed in this court on 14 November 2005 and is supported by an affidavit of the Applicant sworn 14 November 2005. The affidavit reads as follows:

"1. I applied to the Federal Magistrate Court of Sydney and the Court dismissed my application.

2. I attended to the Federal Magistrate Court hearing on the due course (sic) but lack of my finance. I did not have any lawyer.

3. As I did not have any lawyer and I did not know the case I could not pursue my matter properly and accurately.

4. Now some of my friends agree to give me some money to hire a lawyer. If this court allow me or accept my appeal I wish I would be able to engage a lawyer who could represent me.

5. I pray to this court that my application be accepted and allow me to proceed this matter to this Honourable Court.

6. I pray to this Honourable Court to accord me natural justice."

2 In the judgment appealed from the learned Federal Magistrate said:

19. ... in the absence of any alternative explanation I am satisfied that having regard to the applicant's litigation history an inference can be drawn that the applicant filed the present proceedings for the purpose of extending his period of stay in Australia."

3 I have drawn this passage to the Applicant's attention in circumstances where he has informed the Court that in relation to his current application "At present, I won't be able to say anything".

4 Having drawn it to his attention, I asked the Applicant "Is there anything you want to say in support of your application for leave to appeal?"

5 He then replied with words to the effect "I have to get some documents from my country in relation to that".

6 The history of the Applicant's case has been set out in paragraphs 1 to 6 of the reasons for judgment of the learned Federal Magistrate. The Applicant applied for a visa, which application was refused by the Minister's delegate. The applicant then applied for review of the Minister's delegate's decision in the Refugee Review Tribunal ("the Tribunal"), which affirmed the decision of the Minister's delegate not to grant the Applicant a protection visa on 6 February 2003. In March 2003, the Applicant applied to this court for judicial review of the Tribunal's decision.

7 That application was transferred to the Federal Magistrates Court of Australia where the Applicant was represented by counsel. Only one of the numerous grounds of review raised in the application to the Court was pursued, the issue being whether the decision of the Tribunal to proceed in the absence of the Applicant was procedurally fair and whether the decision of the Tribunal was open to it under s 426A(1)(b) of the Migration Act 1958 (Cth) ("the Act"). In those proceedings, the Federal Magistrate concluded that, in the circumstances, it was not procedurally unfair. His Honour rejected the ground advanced and dismissed the application.

8 On 27 October 2003, the Applicant appealed to this Court from the decision of the Federal Magistrate. On 10 May 2004, a Full Court dismissed that appeal, whereupon the Applicant filed a draft notice of appeal in the High Court. That notice of appeal claimed that the Federal Court had erred in not finding an error of law, that the Tribunal did not find any evidence in relation to the Applicant's claims, that the Full Court's decision was influenced by sufficient doubt and affected by the decisions of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, and that the Tribunal had denied the applicant procedural fairness. On 9 February 2005, the proceedings in the High Court were deemed abandoned as the applicant had failed to comply with the applicable provisions of the High Court rules.

9 On 29 June 2005, the applicant instituted fresh proceedings in the Federal Magistrates Court of Australia seeking review of the Tribunal's decision, and raising a number of generally expressed and unparticularised grounds. That application pleaded that the Tribunal had asked itself the wrong question, did not take into account oral evidence, (I interpose that there was no such evidence), denied the applicant natural justice, was biased and denied the applicant procedural fairness.

10 The respondent Minister filed a notice of objection to competency and a notice of motion seeking summary dismissal of the fresh application on 8 July 2005. On 26 October 2005, a Federal Magistrate made the following orders:

"(1) That the application for judicial review filed on 29 June 2005 be dismissed on the grounds that:

(a) res judicata applies and is a complete bar to the application;

(b) the applicant is estopped from bringing the proceedings; and

(c) the proceedings amount to an abuse of the Court's process and are dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001.

(2) That the applicant pay the respondent's costs fixed in the sum of $2500.

11 Rule 13.10(c) of the Federal Magistrates Court Rules 2001 provides:

"13.10: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
...

(c) the proceeding or claim for relief is an abuse of the process of the Court."

12 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment such as that of the learned Federal Magistrate if it is an interlocutory judgment, unless the Court or a Judge gives leave to appeal. As I understand it, the Applicant brings his application for leave to appeal to the Court under s  24(1A) of the Federal Court of Australia Act.

13 On the hearing of the notice of objection to competency and the notice of motion seeking summary dismissal, the learned Federal Magistrate correctly identified the principles relating to res judicata, issue estoppel and Anshun estoppel. These are conveniently summarised in the judgment of the Full Court in Wong v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] 204 ALR 772, and I refer in particular to the principles enunciated in paragraphs 36 to 39 of the reasons for judgment in that matter.

14 For a grant of leave to appeal to be made, it is necessary for the Applicant to establish that the decision of the Federal Magistrate was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused. Nothing has been said to suggest, nor is it apparent, that the Federal Magistrate's decision was open to doubt.

15 My inclination is to express my concern about the Applicant's litigation history in stronger terms than those chosen by the learned Federal Magistrate in paragraph 19 of his reasons for judgment. It seems to me that the Applicant has, if I may use the expression, "played the system" to his maximum advantage at considerable expense to the Australian taxpaying public. His present application is totally without merit and should be dismissed, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 14 December 2005


The Applicant appeared in person.

Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 December 2005
Date of Judgment:	7 December 2005