Applicant S1000/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 509 (5 May 2006)

MIGRATION – belated unsuccessful application to review a decision made by the Refugee Review Tribunal in 2000 – order of Federal Magistrates Court made adversely to applicant in 2004 including order that no further initiating process be lodged in that Court without leave – further application for leave to appeal interlocutory judgment of Federal Magistrates Court made in 2006 – application dismissed

Migration Act 1958 (Cth) s 424A

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Niemann v Electronic Industries Ltd [1978] VR 431 applied

APPLICANT S1000/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 271 OF 2006

CONTI J
5 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 271 OF 2006

BETWEEN:	APPLICANT S1000/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	3 MAY 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 271 OF 2006

BETWEEN:	APPLICANT S1000/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	5 MAY 2006
PLACE:	SYDNEY

1 By an application filed on 16 February 2006, the applicant applied for leave to appeal from an interlocutory judgment of the Federal Magistrates Court (‘the FMC’) given on 31 January 2006.

2 The FMC recorded that the application for judicial review purportedly filed on 13 January 2006 was accepted for filing in breach of order 3 made by the FMC on 13 December 2004 and as a consequence made the following orders:

3 That order made by the FMC on 13 December 2004 was to the effect that no further application for review of the decision of the Refugee Review Tribunal, which was handed down on 4 April 2000, be accepted for filing in the FMC.

4 The application purportedly filed on 13 January 2006 seeks inter alia to challenge the decision of the RRT made on 20 March 2000. That decision had been the subject of several earlier judicial review proceedings, as recorded in Applicant S1000/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 963 per Driver FM at [4] and [5]. The application for review of that RRT decision had been ruled as incompetent, in so far as it related to the decision of the Minister’s delegate made on 12 October 1998.

5 In support of the present application for leave to appeal is an affidavit of the applicant sworn on 16 February 2006, and a draft notice of appeal containing five purported grounds of appeal (numbered 3 to 7).

6 On 26 April 2006 the applicant filed an outline of submissions and a further affidavit affirmed on 26 April 2006 which annexed a transcript of the applicant’s proceedings before the RRT.

7 The applicant’s submissions purport to distil error in the Refugee Review Tribunal’s decision made more than six years ago, errors said to have been overlooked by the FMC. What follows below reflects the Minister’s reasons for decision on the subject of the present application for leave to appeal.

8 In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Federal Court considered as an ‘appropriate litmus test for the general run of cases, in which leave to appeal from an interlocutory decision is sought’ (at 399), being the two principles stated in Niemann v Electronic Industries Ltd [1978] VR 431, namely, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal, and whether substantial injustice would result if leave were refused, supposing the decision be wrong.

9 The Full Court in Décor (at 400) also endorsed the proposition that leave will be more readily granted where the decision the subject of appeal determined a ‘substantive right’ rather than a ‘point of practice’.

10 In the present case, the Federal Magistrate’s decision determined points of practice and/or procedure, that is to say, first whether the application purportedly filed on 13 January 2006 was filed in breach of an order of the Federal magistrate Court which required the applicant to first obtain leave of the FMC to appeal, secondly whether that leave should be granted, and thirdly whether the application was incompetent insofar as it related to the decision of the Minister’s delegate. The Minister submitted that the court should be reluctant to grant leave in such circumstances.

11 The Minister submitted further that the applicant would need to meet both of the principles enunciated in Décor before the Court would be willing to grant the applicant leave to appeal, and moreover that the applicant did not meet either of those principles for the reasons below.

First principle – whether in all the circumstances the interlocutory decision of the Federal Magistrates Court is attended by sufficient doubt to warrant reconsideration by the court on appeal

12 The proposed grounds of appeal in the draft notice of appeal merely state general propositions which do not purport to illuminate the basis upon which the applicant would seek to appeal.

13 Moreover there are complaints made in the applicant’s written submissions which indicate other proposed grounds of appeal intend to be relied upon. For instance, the applicant asserts a breach of s 424A of the Migration Act 1958 (Cth) as a result of the Tribunal’s alleged failure to put to the applicant pursuant to that section inconsistencies between, inter alia, the applicant’s claims in his protection visa application and those made in his oral evidence at the hearing before the RRT.

14 The applicant asserted by the written submissions, being submissions which appear to have been drafted by a migration agent, or some other person with a rudimentary understanding of migration law and practice, an understanding that the Federal Magistrate ‘has overlooked some serious legal issues that were also over sighted by the RRT’, including an alleged failure to put adverse material to the applicant. The Minister submitted that there was no substance to that assertion.

15 The Minister explained that the application before the Federal Magistrate in SYG 130 of 2006 included a proposed ground that ‘[t]he Tribunal’s common law duty to disclose information under s 424AQ, but not superseded by it, where not modified by the operation of section 424B’ (sic). The applicant did not provide written submissions in support of that application. By refusing leave for the filing of that application, it followed that the Federal Magistrate was not of the view that in all the circumstances the applicant had properly raised an issue such as to warrant the granting of that leave.

16 In a previous application for review, the applicant had asserted a lack of procedural fairness because the RRT had information that was not disclosed. The same Federal Magistrate expressed the view that there was no substance to that application. His Honour observed that the purported grounds for review substantially mirrored grounds advanced in the original Federal Court proceedings commenced in 2000, and the applicant had the further opportunity to agitate those grounds when his proceedings were severed from the Muin and Lie class action and remitted to the Federal Court. His Honour found that the interests of the administration of justice did not require that the applicant be given any further opportunity, and on the contrary required that he be denied any such further opportunity. His Honour went on to find that application was vexatious and an abuse of process.

17 The applicant has not demonstrated that the Federal Magistrate failed to have regard to the ground for review presented to the FMC, nor has the applicant identified how the Federal Magistrate erred in the consideration of that ground on the limited information placed before the Court. Moreover I would agree that the fact the applicant has provided more purported detail of that ground in written submissions to this Court has nevertheless not demonstrated any error on the part of the Federal Magistrate.

18 The applicant does not appear to take any issue with the decision of the FMC insofar as it related to the dismissal of the application as incompetent.

19 Accordingly, the Minister submitted that the decision of the FMC of 31 January 2006 was not attended with sufficient doubt to warrant it being reconsidered on appeal.

Second principle – whether substantial injustice would result if leave were refused, supposing the decision to be wrong

20 Having regard to this applicant’s litigation history (including the fact that the FMC found that a previous application for judicial review by the applicant in respect of the decision of the Tribunal was vexatious and an abuse of process, which resulted in an order that no further applications by the applicant to review the decision of the RRT be accepted for filing in the FMC except by leave), the Minister submitted that there is a public interest in the finality of litigation and that no substantial injustice would result if leave were refused, assuming the decision to be wrong.

21 The application for leave to appeal from the judgment of the FMC of 31 January 2006 be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Applicant appeared in person

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	3 May 2006

Date of Judgment:	5 May 2006

Federal Court of Australia

Applicant S1000/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 509 (5 May 2006)