SZDCN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 647

FEDERAL COURT OF AUSTRALIA

SZDCN v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 647

SZDCN AND SZDCO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD573 OF 2005

BENNETT J
9 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD573 OF 2005

BETWEEN:

SZDCN
FIRST APPLICANT

SZDCO
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

9 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave be dismissed.

2.        The application for an extension of time be dismissed.

3.No further application for review of the Refugee Review Tribunal’s decision of 2 April 2002 be filed in this Court without leave of the Court.

4.The applicants pay the respondent’s costs of the application on an indemnity basis.

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	NSD573 OF 2005

BETWEEN:

SZDCN
FIRST APPLICANT

SZDCO
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BENNETT J
DATE:	9 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this case the applicants seek leave to appeal and an extension of time for the application for leave to appeal against interlocutory orders of Federal Magistrate Driver made on 21 June 2004.  His Honour disposed of the application before him by upholding the respondent’s notice of objection to competency and dismissing the application as incompetent.  The basis of his Honour’s decision is set out in [6] of his Honour’s reasons.  In order to understand those reasons the chronology of this matter is relevant.

2. The applicants arrived in Australia on 18 June 1999.  An application for a protection visa was lodged on 16 July 1999 and refused by a delegate of the respondent on 29 October.  On 17 November 1999, the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.  The Tribunal handed down its decision on 2 April 2002.  An application for judicial review was lodged in the Federal Court on 24 April 2002.  The matter was transferred to the Federal Magistrates Court and, on 24 July 2002, the application was dismissed with costs by Driver FM.

3. A notice of appeal was filed and, on 12 November 2002, Conti J dismissed the appeal with costs for non-appearance.  Two applications for special leave to appeal were filed in the High Court on 9 December 2002 and 14 August 2003.  In each case the application was deemed abandoned because the applicants failed to file and serve application books.  A fresh application for judicial review in respect of the same Tribunal decision was filed on 23 March 2004 and on 21 June 2004 there was a hearing of a notice of motion for summary dismissal and an objection to competency of that application.  The orders made by Driver FM on that day are the subject of this application.

4. The first applicant appeared before me in person, assisted by an interpreter.

5. The applicants seek leave to appeal because the orders of Driver FM are interlocutory.  The applicants were required to file and serve an application for leave to appeal on or before 12 July 2004 but the current application was not filed until 4 April 2005.  The applicants are therefore almost nine months outside the prescribed 21 day time limit under O 52 r 15(1)(a) of the Federal Court Rules.

6. The questions that arise on the leave to appeal are whether in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused supposing the decision to be wrong (Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397). The respondent opposes the grant of leave because it is said that the appeal is doomed to fail, no arguable ground of appeal has been raised and the judgment below is not attended by sufficient doubt to warrant allowing an appeal to proceed.

7. The application for leave to appeal is accompanied by an affidavit of the first applicant sworn 1 April 2005.  The first applicant said that he relied upon a migration agent.  The evidence is not entirely clear.  The first applicant seems to be saying that the migration agent told him that an appeal would be filed but that did not occur.  The first applicant says that he later discovered that an appeal had not been filed.

8. The draft notice of appeal sets out grounds of appeal:

   ‘1.       The Honourable Federal Magistrates Court erred in law in determining whether this matter was reviewable in the Federal Magistrates Court.

   2.The Honourable Court also erred in law determining that the Federal Magistrates Court did not have the Jurisdiction to review this matter.

   3.The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal.

   4.I will provide more details later.’

9. It can be seen that the draft notice of appeal lacks any particulars.  There is no apparent basis for any claim that the decision of the Federal Magistrate is attended by sufficient doubt.  There is no indication of special reasons on which to base an exercise of discretion to grant the extension of time (Federal Court Rules O 52 r 15(2)).  I note that the Federal Magistrate, in his reasons, sets out the further bases or considerations that he took into account in coming to his conclusion at [1] to [3]:

   ‘1.I have before me a notice of objection to competency and a notice of motion filed on 4 May and 11 May 2004 respectively.  These are in relation to an application for judicial review filed on 23 March 2004 of a decision of the Refugee Review Tribunal (“the RRT”) made on 2 April 2002 confirming a decision not to grant the applicant a protection visa.  This is not the first time that an application has been made to this Court to review the decision of the RRT.  An earlier application instituted in the Federal Court and transferred to this Court was dealt with by me on 24 July 2002.  I dismissed the application with costs.  My decision was made prior to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 concerning the operation of a privative clause in s.474 of the Migration Act 1958 (Cth) (“the Migration Act”).

   2.        However, in paragraph 24 of my decision I said:

   Whatever view one takes of the privative clause in the Migration Act no error of law has been disclosed which would support the granting of prerogative relief by me.

   3.It follows from that conclusion that viewed in the light in the decision of the High Court in S157 of 2002 I found that the decision of the RRT is not infected by any jurisdictional error and is therefore a privative clause decision.  My decision was affirmed on appeal by Conti J in the Federal Court on 12 November 2002.  In his reasons for judgment His Honour said:

   I should add that I have read the judgment of the Federal Magistrate, his Honour Mr Driver which was delivered on 24 July 2002.  I have been unable to discern any error in the reasons for judgment of his Honour and I further observe that the notice of appeal filed 13 August 2002 does not set out any ground of appeal, viable or otherwise.’

10. It is submitted by the respondent that this application is simply an attempt to re-litigate a case already disposed of by previous proceedings.  When the first applicant was asked the basis for his proposed appeal, he simply said that he was not prepared to accept the Tribunal’s decision.

11. The Tribunal’s decision in this case has been the subject of consideration by a Federal Magistrate and a Judge of this Court on a previous occasion.  The applicants took advantage of the opportunity twice to seek special leave to the High Court but chose not to proceed with those applications.  The first applicant also conceded before me that he could not see any error in the Federal Magistrate coming to the conclusion that he did in respect of the time limit applicable to his appeal.

12. I can see no error in the reasons of the Federal Magistrate.  In all the circumstances, it is not apparent to me that any substantial injustice would be caused to the applicants by a refusal of the application for leave and an extension of time.  For these reasons I propose to refuse the grant of leave and the extension of time sought.

13. The Minister has sought indemnity costs in this case on the basis of the litigation history.  I asked the first applicant whether he had anything to say on whether such an order should not be made and he indicated that he did not wish to make any submissions in that regard.  Accordingly, in light of the history of the matter as set out above, it seems to me that it is appropriate to make an order for indemnity costs.

14. The application for an extension of time is refused.  The application for leave to appeal is refused.  I order the applicants to pay the respondent’s costs of the application on an indemnity basis.  I also order that no further application for judicial review of the decision of the Tribunal handed down on 2 April 2002 be accepted for filing in this Court except by leave of the Court.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             24 May 2005

The First Applicant appeared in person assisted by an interpreter

Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 May 2005
Date of Judgment:	9 May 2005