SKCB v Minister for Immigration and Multicultural Affairs [2006] FCA 104 (6 February 2006)

Last Updated: 20 February 2006

FEDERAL COURT OF AUSTRALIA

SKCB v Minister for Immigration and Multicultural Affairs [2006] FCA 104

SKCB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2319 OF 2005

MADGWICK J
6 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2319 OF 2005

BETWEEN:	SKCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	6 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs assessed in the sum of $1000.
2. The Refugee Review Tribunal be joined as the second respondent.

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 2319 OF 2005

BETWEEN:	SKCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	6 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 This is an application for leave to appeal from orders of the Federal Magistrates Court given by Federal Magistrate Smith on 7 November 2005. On that date his Honour summarily dismissed by consent an application for judicial review of a decision of the second respondent (‘Tribunal’) that had been filed in that court on 21 July 2005.

2 The applicant was then represented by a solicitor and the solicitor consented to the proceedings being dismissed as an abuse of process. The applicant was not present at the hearing before the learned Federal Magistrate. His Honour proceeded pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001. His Honour’s orders were interlocutory and leave to appeal is required.

3 The applicant now says that he did not consent to the dismissal of the proceedings. His explanation in this regard is unsatisfactory and confused but, let it be assumed that he had not in fact consented, the fact remains that the proceedings in the Federal Magistrates Court were hopeless and were an abuse of process.

4 The applicant came to Australia from his native country on 1 July 2000. His application for refugee status was refused by the first respondent’s delegate and that refusal was affirmed by the Tribunal on 13 August 2002.

5 The applicant sat on his hands for several months before approaching the Federal Court in proceedings No. S457 of 2003. On 7 November 2003 Selway J dismissed his application with costs. The appellant was then legally represented. His Honour considered none of the arguments put to him was sustainable and that no jurisdictional error had been identified.

6 The applicant then again, as the facts indicate, chose to take his chances by remaining illegally in Australia without doing anything to challenge his Honour’s decision or otherwise to set aside the judgment of the Tribunal until 21 July 2005 when he brought the subject application for judicial review before the Federal Magistrates Court.

7 The same decision of the Tribunal was sought to be challenged for jurisdictional error. Given that there was no successful appeal from Selway J’s judgment, it is quite clear that the proceedings before the Federal Magistrates Court were an abuse of process. The subject matter of the applicant’s complaints had been finally determined against him previously. Whether or not the applicant consented to the dismissal of the proceedings in the Federal Magistrates Court, his Honour would have had no choice but to make the orders that he did.

8 The errors alleged in the intended notice of appeal have nothing to do with anything that occurred in this case.

9 The intended appeal is utterly hopeless and in my view leave to proceed with it should not be granted. The application will be dismissed with costs assessed in the sum of $1000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 17 February 2006

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 February 2006
Date of Judgment:	6 February 2006