SZARA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1731

FEDERAL COURT OF AUSTRALIA

SZARA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1731 SZARA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR NSD 2010 OF 2005 ALLSOP J 24 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2010 of 2005

BETWEEN: SZARA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 24 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's 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 NSD 2010 of 2005

BETWEEN: SZARA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE: 24 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by a Federal Magistrate on 4 October 2005. The orders made by the learned Federal Magistrate were that a notice of motion filed by the Minister in August be upheld. The application was dismissed as incompetent and a direction was made that no further application be received by the registry without prior leave of the Court. The reasons for these orders at an interlocutory and summary level can be gleaned from a perusal of the learned Federal Magistrate's reasons. 2 The litigation chronology is set out in para 8 of the learned Federal Magistrate's reasons. This was taken from evidence before the Federal Magistrate in the form of an affidavit of Ms Burnett. There was no suggestion in the submissions made today and in the papers that Ms Burnett's evidence was in any way inaccurate. 3 The chronology of events is that on 16 November 2000 the applicant lodged an application for a protection visa. On 13 February 2001 a delegate of the Minister refused to grant the visa. On 13 March 2001 the applicant applied to the Tribunal for a review of the delegate's decision. Over two years later on 22 April 2003 the Tribunal handed down its decision affirming the delegate's decision. 4 On 26 May 2003 the applicant filed an application for review of the Tribunal's decision with the Federal Magistrates Court. On 1 April 2004 Federal Magistrate Barnes dismissed the application finding no jurisdictional error attended the decision. 5 On 15 April 2004 the applicant filed a notice of appeal in the Federal Court. On 1 June 2004 the Honourable Justice Emmett dismissed the appeal to the Federal Court. 6 On 29 June 2004 the applicant applied to the High Court of Australia for special leave to appeal from Emmett J's dismissal of the appeal. On 16 June 2005 the application for special leave to appeal was dismissed with costs. 7 On 14 July 2005, is one month later, the applicant once again filed fresh initiating proceedings, beginning the whole process again. 8 The learned Federal Magistrate, in a careful judgment, set out the principles governing repetitious applications for judicial review. Parties are not free to simply begin again the same action when they do not like the result of the first. 9 The issues as to whether there was jurisdictional error in the Tribunal's decision having been conclusively decided against the applicant, there can be no doubt that the decision was a privative clause decision. 10 In those circumstances, the application was both out of time and on the facts disclosed by the magistrate's reasons, hopeless in the sense of being without merit. 11 For those reasons there would appear to be no basis for any successful appeal from the orders made by the learned Federal Magistrate. 12 In those circumstances, the application for leave to appeal will be dismissed. 13 No one has attended the application today on behalf of the Minister. That no doubt is by way of oversight. Perusal of the Court file indicates that steps have been taken to file a notice of appearance and therefore some costs must have been expended. 14 In those circumstances, the appropriate orders are: 1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs. 15 I make those orders.