NAJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 563

FEDERAL COURT OF AUSTRALIA

NAJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 563

NAJI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 2566 OF 2005 EDMONDS J 1 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2566 OF 2005

BETWEEN: NAJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 1 May 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's cost on an indemnity basis, fixed in the sum of $2,033.00. 3. No further application to this Court to review the decision of the delegate of the respondent dated 10 August 2000 or to review the decision of the Refugee Review Tribunal handed down on 29 January 2003 be accepted for filing except with leave of the Court.

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 2566 OF 2005

BETWEEN: NAJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE: 1 May 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT EDMONDS J: 1 The application before the Federal Magistrate (Smith FM) sought judicial review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse to grant a protection visa to the applicant. 2 The Federal Magistrate dismissed the application on the grounds that the proceeding was an abuse of the process of the court pursuant to rule 13.10C of the Federal Magistrates Court Rules 2001. Prior to the current application there had been two anterior applications seeking judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') affirming the decision of the delegate of the Minister. Details of these anterior applications, appeals from judgments delivered in respect of such applications and applications for leave and special leave from such judgments, are set out at length in the reasons of the Federal Magistrate in NAJI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1961 at [6] – [14] inclusive. 3 By way of background, the applicant is a citizen of Bangladesh. The essence of his claims for refugee protection was that he had been actively involved in Bangladeshi politics as a member of the Bangladeshi Nationalist Party ('the BNP') and had been persecuted by members of the Awami League. While the matter was pending before the Tribunal the Government of Bangladesh passed into the hands of the BNP and the applicant then claimed that he would be harmed by local political rivals within the BNP. The Tribunal carefully assessed all his claims and was not satisfied that he faced a real chance of persecution for Convention reasons on return to Bangladesh. 4 As I have already indicated, the applicant's history of litigation concerning the decision-making on his protection visa application is set out at length in the Federal Magistrate's reasons. I do not think there is any utility in repeating that history. In the course of his reasons the Federal Magistrate observed that the applicant's current application duplicates the precedent commonly used by applicants that have fully exhausted their rights of judicial review of Tribunal decisions. His Honour further observed that he had given several judgments which analyse such applications and he referred, in particular, to SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549 at [15] – [20]. He indicated that he proposed to adopt that analysis for the purposes of the matter before him. 5 Specifically, in dismissing the application, his Honour relied on the four reasons given by him in SZGMZ at [22] – [26]. His Honour further observed, by way of postscript, that after delivering judgment, his conclusion in SZGMZ had been upheld by Wilcox J in SZGMZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1844, referring also to SZDFW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1821, in particular at [8]. 6 His Honour went on to elaborate the basis of the fourth reason he gave in SZGMZ for characterising the application as an abuse of process. He said there was: '…a factual inference, drawn from the history of litigation in that case, that the application had been brought for the predominant purpose of engaging in protracted litigation with the Minister for the collateral purpose of obtaining bridging visas whose entitlement depends upon the continuance of judicial review proceedings regardless of their merits. I reach the same conclusion as to the present applicant's motives in the present case.' 7 His Honour further observed that: 'The applicant has also candidly told me today that he came to live in this country lawfully and that is why he has come to Court again and again, since he does not wish to remain unlawfully. It is plain that he has no appreciation that repeated unmeritorious litigation cannot be tolerated by any Court when brought for such a purpose.' 8 That candid statement by the applicant was repeated before me on the hearing of this application. Based upon the principles and authorities collected in the judgment of Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [3] – [6], it is clear that his Honour's judgment below is interlocutory, thus requiring the leave of this Court for the applicant to proceed with his appeal. 9 There are two guiding principles which have been relied upon as part of the determination process as to whether leave to appeal should be granted in any particular case. The first of those is whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and the second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 10 In SZDGN at [11] his Honour said: 'If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward (the ground of refusal is variously expressed in the cases), there will be: · no extension of time within which to apply for leave to appeal; and · no grant of leave to appeal; and · (assuming contrary to my conclusion expressed above, that Driver FM's judgment was final rather than interlocutory) no extension of time within which to file and serve a notice of appeal in exercise of a right of appeal.' 11 In that case his Honour went on to say, for the reasons which appear later in his judgment, that in his opinion the applicant failed at this first hurdle. 12 In my view, the same applies in the present case. The application for leave must be refused with costs. I note that the Minister has applied for an order for costs on an indemnity basis in a fixed sum pursuant to O 62, r 4(2c) of the Federal Court Rules. 13 I will order that: (1) The application be dismissed. (2) The applicant pay the respondent's costs on an indemnity basis in a fixed sum of $2,033. 14 The respondent has also submitted that, having regard to the history of this litigation, it is appropriate for the Court to make an order that no further application to this Court to review the decision of the delegate of the Minister dated 10 August 2000 or to review the decision of the Tribunal handed down on 29 January 2003 be accepted for filing except with the leave of the Court. 15 I agree and will make an order in those terms. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.