SZADX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 422

FEDERAL COURT OF AUSTRALIA

SZADX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 422

SZADX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 177 of 2003

SACKVILLE J
SYDNEY
14 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N177 OF 2003

BETWEEN:	SZADX APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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	N177 OF 2003

BETWEEN:	SZADX APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is the first directions hearing of an appeal against a decision of the Magistrates Court given on 21 February 2003.  The learned Magistrate, in an ex tempore judgment, dismissed an application for review of a decision of the Refugee Review Tribunal (“Tribunal”) given on 16 October 2001.  This is not the first time the applicant has challenged the decision of the Tribunal.

2. The first application for review of the decision was dismissed by Finkelstein J on 7 February 2002.  An appeal to the Full Court was dismissed on 15 November 2002.  The present appellant was legally represented on both occasions.

3. Mr Lloyd who appeared for the Minister at today’s directions hearing informed me that the Minister wishes to remove the applicant from Australia, but very properly has refrained from doing so pending this directions hearing.  When I explained to the appellant that in the absence of an order restraining the Minister from removing him from Australia, there would be no impediment to the Minister doing so, the applicant applied for such an order.

4. As the transcript will indicate, I have explained to the appellant that there may be circumstances in which a party who has failed in an application to this Court to challenge a decision of the Tribunal, may nonetheless bring a second challenge.  See BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221, at [22] ff. In this case however, the second challenge to the decision of the Tribunal raises no issue that is in any way different from the issues dealt with by Finkelstein J or the Full Court.

5. Nor does the Notice of Appeal which the appellant has filed suggest that there is any real prospect of success of the appeal.  It is true that the High Court has recently given judgment in the important case of Plaintiff S157 of 2002 v Minister for Immigration & Multicultural Affairs (2003) 195 ALR 24. However, that judgment appears to have no bearing upon the appellant’s position, since the Full Court in the present case held that no jurisdictional error had been shown on the part of the Tribunal.

6. In these circumstances, I do not think that the appellant has demonstrated that there is any serious question to be tried on the appeal.  Accordingly, there is no basis for me to restrain the Minister from removing the appellant from Australia.  This of course does not mean that the appeal is no longer on foot, and I will make directions for the conduct of the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville J.

Associate:

Dated:             14 March 2003

The appellant was self-represented.

Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 March 2003
Date of Judgment:	14 March 2003