SZCBH v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 730

FEDERAL COURT OF AUSTRALIA

SZCBH v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 730

MIGRATION – application for leave to appeal – no issue of principle

SZCBH AND SZCBI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 139 OF 2005

CONTI J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 139 OF 2005

BETWEEN:

SZCBH
FIRST APPLICANT

SZCBI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

13 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant to pay the respondent’s costs assessed at $650.

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 139 OF 2005

BETWEEN:

SZCBH
FIRST APPLICANT

SZCBI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	CONTI J
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 2 February 2005 the applicants filed an application for leave to appeal from the judgment of the Federal Magistrate given on 18 January 2005.  The Federal Magistrate summarily dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 18 November 2003, which upheld the Minister’s delegate’s decision to refuse to the applicants protection (Class XA) visas.  The ground for that summary dismissal was the applicant’s failure to comply with the Court’s order to file an amended application articulating the grounds upon which relief was being sought.  A judgment to that effect is interlocutory in nature, because it does not finally determine the legal rights of the parties:  Re Luck (2003) 203 ALR 1. Hence the applicant was required to seek leave to appeal from the Federal Magistrate’s decision (Federal Court of Australia Act 1976 (Cth) s 24(1A)). This is what the applicants have done.

2. The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment ‘in the general run of cases’ were outlined by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431. First, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal. Secondly, whether substantial injustice would result if leave was refused, supposing the decision to be wrong.

3. At the first directions hearing, the Federal Magistrate ordered the applicants to file and serve an amended application setting out the particulars of each ground of review being relied upon.  Another order gave the Minister permission to request that the applications be referred to the non-compliance list with the intention of applying for summary dismissal.  Following their failure to comply with the Federal Magistrate’s order on time, the applicants were sent two separate letters by the solicitor for the Minister drawing their attention to the implications of this failure.  The applications were then placed into the non-compliance list and summarily dismissed by the Federal Magistrate. 

4. In his reasons for judgment, his Honour observed that the applicants had had more than 13 months in which to attend to their applications.  His Honour did not find that the applicants had provided anything even approaching an adequate explanation for why they had not earlier sought legal advice or otherwise taken steps to draft an amended pleading but found, rather, that ‘the applicants have elected to do essentially nothing to pursue their application for the past thirteen months’ (at [9]).  My own impression of the application was not assisted by the applicants’ inability to identify during today’s hearing any error in either the Federal Magistrate’s decision or that of the Tribunal.

5. Along with the application for leave to appeal, the first applicant filed an affidavit in the following terms (read literally):

   ‘1. I am an Indian citizen by birth and came to Australia and I applied for protection visa under the Determination of Refugee Status in Australia.

   2. The delegate of the Minister for Immigration and Multicultural Affairs refused to grant my protection visa.  I applied for review with the Refugee Review Tribunal, Sydney.  The refugee Review Tribunal affirms the delegate’s decision.

   3. Prior to my departure from India.  I was living in India.  I was problem while I was in India.

   4. I require leave to appeal and extension of time to file and serve notice of appeal.

   5. My application is out of time because I do not know prescribe time limit to file appeal.  I am unrepresented.

   6. Considering the circumstance stated above, I am expecting that Federal Court will make favourable decision in relation to my protection claim in India.

   7. I will provide more details later.’

6. The only conceivable attempt to explain their failure in complying with the Federal Magistrate’s order to file an amended application may therefore be seen to be that the applicants were not legally represented.  That in itself is clearly insufficient in the present circumstances to ground the leave sought.  I therefore dismiss the application for leave to appeal and order the applicant to pay the costs of the Minister assessed at $650.

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

Associate:

Dated:             2 June 2005

The applicants appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005