SZDNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 396

FEDERAL COURT OF AUSTRALIA

SZDNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 396

MIGRATION – no point of principle

SZDNK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 168 OF 2005 MOORE J 21 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 168 OF 2005

BETWEEN: SZDNK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 21 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an extension of time to seek leave to appeal against the judgment of the Federal Magistrate of 20 December 2004 be refused. 2. The applicant pay the respondent's costs of the application. 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 168 OF 2005

BETWEEN: SZDNK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 21 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application purportedly for leave to appeal against a judgment of a Federal Magistrate pronounced on 20 December 2004. The reasons for judgment were not published until 28 February 2005. The application for leave to appeal was filed in this court on 8 February 2005 but not within the prescribed time for an application for leave to appeal from an interlocutory judgment (see O 52 r 5(2)(a) of the Federal Court Rules). However, by that application, the applicant also sought an order that compliance with O 52 r 5(2) be dispensed with. 2 In his reasons for judgment the Federal Magistrate recounted some of the background of the applicant's involvement with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). I will not repeat that account. It is sufficient to note that on 28 November 2003 the Refugee Review Tribunal ("the Tribunal") made a decision affirming a decision to refuse to grant the applicant a protection visa. 3 The judgment of the Federal Magistrate of 20 December 2004 concerned an application filed in the Federal Magistrates Court on 1 November 2004. That application identified the Tribunal's decision of 28 November 2003 as the decision to which the proceedings related. However, in the application, the applicant challenged a miscellany of decisions or acts of the Department including the cancellation of his short stay visa, his detention in immigration detention, the refusal to grant the protection visa and, so it is alleged, the destruction of his passport. From comments made this morning, the applicant also appears to challenge a conclusion reached by the Department that the applicant had been working and receiving $350 per week while working. 4 The Federal Magistrate was correct in concluding that the application before the Federal Magistrates Court disclosed no reasonable cause of action or alternatively was an abuse of process. Nothing is identified in the material filed in this court, nor did anything emerge in the submissions made today which suggests the Federal Magistrate erred in dismissing the application though I have some misgivings about the Federal Magistrate's application of the principles of issue estoppel or res judicata in circumstances where the pleadings and process in the Federal Magistrates Court were so vague and imprecise. 5 The applicant, in my opinion, would have no prospects of success if time were extended and leave to appeal were given. Accordingly, I propose to refuse to extend time though I indicate that if time were extended I would dismiss the application for leave to appeal. 6 I order that the application for an extension of time to seek leave to appeal against the judgment of the Federal Magistrate of 20 December 2004 be refused and the applicant pay the respondent's costs of the application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.