SZAEM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1082

FEDERAL COURT OF AUSTRALIA

SZAEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1082

SZAEM, SZAEN, SZAEO AND SZAEQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1122 of 2005

BRANSON J
21 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1122 of 2005

BETWEEN:

SZAEM
FIRST APPLICANT

SZAEN
SECOND APPLICANT

SZAEO
THIRD APPLICANT

SZAEQ
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

21 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The adult applicants pay the respondent’s costs fixed in the sum of $800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1122 of 2005

BETWEEN:

SZAEM
FIRST APPLICANT

SZAEN
SECOND APPLICANT

SZAEO
THIRD APPLICANT

SZAEQ
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	21 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants seek leave to appeal from the interlocutory judgment of the Federal Magistrates Court by which their application to that Court was dismissed as an abuse of process.

2. This Court has a wide discretion to grant leave to appeal from an interlocutory judgment.  The discretion is not constrained by rigid rules, but normally leave is not granted unless some doubt attends the decision from which the appeal is sought to be brought.

3. The interlocutory judgment of the Federal Magistrates Court was given in the following circumstances.  The applicants commenced a proceeding for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) in the Federal Magistrates Court in February 2003.  That proceeding failed because the Federal Magistrates Court could find no jurisdictional error affecting the Tribunal’s decision.

4. The applicants appealed that decision of the Federal Magistrates Court to this Court.  Their appeal was dismissed by Conti J.  They then applied for special leave to appeal to the High Court.  That application was dismissed on 3 March 2005.  Approximately two weeks later, the applicants commenced a fresh proceeding in the Federal Magistrates Court by which they again sought judicial review of the decision of the Tribunal.  It is the judgment on that application that gives rise to the application before me.

5. The Federal Magistrate concluded that an issue estoppel prevented the applicants from again seeking judicial review of the decision of the Tribunal.  The Federal Magistrate also held that if he were wrong in that respect, an Anshun estoppel would prevent the fresh application being brought in the Federal Magistrates Court. 

6. No error appears to attend the decision of the Federal Magistrate.  In any event, the applicants themselves have made plain to me today that what they really want is a chance to re-argue their case before the Tribunal.  They wish to support their claim to be entitled to a protection visa by reference to changed circumstances in their home country of Pakistan.  The Migration Act 1958 (Cth) does not allow the applicants to present a fresh case to the Tribunal merely because circumstances in their home country have changed since the date of the Tribunal’s decision.

7. The applicants have expressed concern about the position of their children, who have spent almost no time in Pakistan and who have been educated largely in Australia.  While I have sympathy for the appellants’ children, I am unable to take their circumstances into account on this application.

8. I am not satisfied that any doubt attends the judgment of the Federal Magistrates Court.  The application is therefore dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            5 August 2005

Counsel for the Applicants:	The Applicants appeared in person.
Advocate for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005