SZBOD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 719 (20 June 2005)

SZBOD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 719

SZBOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 276 of 2005

ALLSOP J
20 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 276 of 2005

BETWEEN:	SZBOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	20 JUNE 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 276 of 2005

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

JUDGE:	ALLSOP J
DATE:	20 JUNE 2005
PLACE:	SYDNEY

1 On 27 January 2005, a Federal Magistrate dismissed the applicant’s application made under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the "Tribunal") which had affirmed the decision of a delegate of a Minister not to grant a protection visa. The dismissal by the Federal Magistrate was under Rule 13.10(a) of the Federal Magistrates Court Rules. That rule is in the following terms:

2 This order of the Federal Magistrate was interlocutory, being by way of summary dismissal.

3 In this matter I made directions on 7 April 2005 that the applicant file and serve written submissions as to why leave to appeal should be granted. No submissions were filed by the applicant for leave.

4 The reasons of the Federal Magistrate dealt, if I may say so, carefully and thoroughly with the matter.

5 The Federal Magistrate began by noting that the application filed in the Federal Magistrates Court was unparticularised; and that thereafter, an order was made that the applicant file and serve an amended application setting out the grounds relied upon together with any affidavit material. It was further ordered that in relation to the claim that the applicant had a case based upon the High Court decision in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 the applicant was to file and serve points of claim and any further affidavits in relation to that matter. The applicant failed to comply with those orders.

6 The matter came before another Federal Magistrate in September 2004. By that stage, the applicant had filed an amended application. It was ordered that the matter proceed on that basis and that the respondent had liberty to seek summary dismissal. Such an application was brought.

7 The amended application is annexed to these reasons. It is discursive and covers many issues. It asserts a failure to accord procedural fairness.

9 The Federal Magistrate identified the history of the matter and the substance of the reasons of the Tribunal. The Federal Magistrate then attended to the terms of the Amended Application and in particular in paragraph six of her reasons recited the grounds of the application dealing with procedural fairness.

10 The Federal Magistrate then directed herself to the need in a summary disposal proceeding to act only if there was no real question to be tried and the claims are clearly untenable and cannot succeed. The learned Federal Magistrate referred to General Steel Industries v Commissioner for Railways (1964) 112 CLR 236. She directed herself that the Court must decide whether on the material before it the action should not be permitted to go to trial in the ordinary way as it is apparent it must fail as obviously unarguable and hopeless and without chance of success.

11 Directing herself in this fashion the Federal Magistrate then dealt with the grounds that were set out in the application and also looked at the material underlying the application she came to the view that there was no basis for an argument that had any prospect of success.

12 One difficulty is that the reasons of the Federal Magistrate, though careful, appear directed to the proposition that, though there is an asserted heading of jurisdictional error in the application, there has been a failure to particularise the ground (in breach of an order) and a failure, despite an opportunity, to bring forward material in support of the application.

13 That may be a basis for dealing with the matter under Rule 13.10(b) or on the basis that an order of the Court has not been complied with. It is not clear that Rule 13.10(a) is properly engaged. However, no submission has been put forward which would give any basis to conclude that the Federal Magistrate was wrong in her conclusion that the case was untenable and baseless. No material was put before the Federal Magistrate or before me which would form a basis of an arguable case. In those circumstances leave to appeal should not be given in what appears otherwise to be an untenable case.

14 The Federal Magistrate’s orders were interlocutory, not final. If the applicant can distil a case, express it and support it with material there is nothing to prevent another application being filed.

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

The Applicant appeared in person with the assistance of an interpreter

Counsel for the Respondent:	Ms D Watson (Slr)

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	5 May 2005

Date of Judgment:	20 June 2005

1.	The application for leave to appeal be dismissed.
2.	The applicant pay the respondent’s costs.

Federal Court of Australia

SZBOD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 719 (20 June 2005)