SZDFW v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1169

FEDERAL COURT OF AUSTRALIA

SZDFW v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1169 SZDFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1173 OF 2004 BEAUMONT J SYDNEY 10 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1173 OF 2004

BETWEEN: SZDFW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 10 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The appeal is dismissed, with costs

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 N1173 OF 2004

BETWEEN: SZDFW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 10 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The background to this appeal is as follows. 2 On 26 July 2002 the appellant, a citizen of Bangladesh, filed an application in the Federal Court of Australia pursuant to section 39B of the Judiciary Act 1903 (Cth) ('the Act'), seeking judicial review of a decision of the Refugee Review Tribunal (the 'Tribunal') on 7 May 2002, which the Tribunal handed down on 4 June 2002. Jacobsen J dismissed the appellant's application with costs: NAMK of 2002 v MIMIA [2002] FCA 1170. His Honour noted (at [13]): 'The [Tribunal] found that the [appellant's] evidence in relation to most aspects of his claims was vague, general and unconvincing. The [Tribunal] found that the evidence contained significant internal inconsistencies and that it was not consistent with independent country information. The [Tribunal] considered that the [appellant] was not a reliable or credible witness.' 3 The appellant appealed against the decision of Jacobsen J to the Full Court of the Federal Court of Australia. This appeal was dismissed by the Full Court (Moore, Mansfield and Stone JJ) on 15 May 2003: NAMK of 2002 v MIMIA [2003] FCAFC 106. 4 On 5 June 2003, the appellant applied for special leave to appeal the decision of the Full Court of the Federal Court of Australia in the High Court of Australia. This application was heard by Callinan and Heydon JJ on 30 April 2004. The applicant filed a written submission but did not attend the hearing. Special leave was refused. 5 On 7 April 2004 the appellant filed an application, amended on 5 July 2004, in the Federal Magistrates Court of Australia pursuant to section 39B of the Act, once again seeking judicial review of the decision of Tribunal. 6 On 22 June 2004 the respondent filed a notice of motion seeking summary dismissal of the appellant's application. On 16 July 2004 Raphael FM delivered judgment on the respondent's application, finding (at [7]) that: '[t]he real vice about the [appellant's] application … is that it is an application for review of a decision that has already been more than thoroughly reviewed. In those circumstances it is not appropriate for this court to undertake a further examination of the decision of the [Tribunal] because to do so would in my view be an abuse of process of the court and would bring the court itself into disrepute.' 7 Raphael FM dismissed the appellant's substantive application as an abuse of process pursuant to Part 13 Rule 13.10 of the Federal Magistrates Court Rules, and further ordered that: 'The Registry not accept any further applications arising out of the decision of the [Tribunal] of 7 May 2002 from [the appellant]. This order does not apply to any appeal against this order.' 8 The appellant has appealed from the decision of Raphael FM. In his Notice of Appeal, the appellant contends, inter alia, that Raphael FM "erred in law in determining whether this matter was reviewable in the Federal Magistrates Court". 9 The respondent has filed an objection to competency, contending that this court does not have jurisdiction to hear the appeal. The respondent contends that (a) the judgment of Raphael FM is an interlocutory judgment; (b) pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Court or a Judge gives leave to appeal; and (c) no such leave has been sought or obtained. 10 In his written argument on competency, the appellant relies on the decision of the High Court in S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003). This case concerned the interpretation and validity of ss 474 and 486A of the Migration Act 1958 (Cth) and whether a decision by the Tribunal affirming the decision of a delegate of the respondent refusing the plaintiff's application for a protection visa is a 'privative clause decision' within s 474. 11 Upon the matter coming on for hearing, I indicated to the appellant that I would wish to be informed of the points he would seek to argue on the appeal, if leave were to be granted. In this regard, the appellant referred to the following: '1. The Tribunal erred in law in determining whether the harm I suffered as a member of Jatio Party in Bangladesh amounted to persecution within the meaning of the Convention. 2. The Tribunal failed to determine whether I would be sufficient protection from the Court System in Bangladesh at the event if such suffering becomes intolerable in future. This constituted a jurisdictional error and a breach of procedural fairness. 3. The Tribunal failed to assess whether the harm and mistreatment suffered can intensify in future. 4. The Tribunal failed to assess whether the harm I suffered constitute a well-founded fear of persecution at the moment of making the decision and also in future. 5. The Tribunal erred in law in determining the harm I suffered did fall with in the meaning of United Nations Conventions and Protocols for Refugees. 6. The Tribunal failed to abide by the obligation discharged by s424 of the Migration Act 1958.' 12 Given the decision of Jacobson J and of the Full Court in this matter, in my opinion none of these grounds are now open to the appellant. 13 The appeal is dismissed, with costs.