SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 350

FEDERAL COURT OF AUSTRALIA

SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs
 [2006] FCA 350

MIGRATION LAW – No question of principle

SZDCR & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 2493 OF 2005

RARES J
1 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2493 OF 2005

BETWEEN:

SZDCR
FIRST APPLICANT

SZDCS
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

1 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time be dismissed.

2.        The applicants pay the respondent’s costs fixed in the sum of $750.00.

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 2493 OF 2005

BETWEEN:

SZDCR
FIRST APPLICANT

SZCDS
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	RARES J
DATE:	1 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from the judgment of a Federal Magistrate, SZCDR v Minister for Immigration [2005] FMCA 1766. His Honour gave judgment on 29 November 2005 dismissing the application before him as an abuse of the process of the court and making orders preventing the applicants from initiating, without the leave of the court, further proceedings to review the decision of the delegate of the respondent (‘the Minister’) dated 14 November 2003 and the decision of the Refugee Review Tribunal dated 5 February 2004 and handed down on 25 February 2004.

2. His Honour set out at paragraphs [2] to [7] of his judgment the procedural history of the various matters in which the applicants have sought relief in addition to the two decisions expressly referred to in his Honour's order.  They initially applied to the Federal Magistrates Court on 24 March 2004 but that application was summarily dismissed on 5 November 2004 for non-compliance with the court's orders (SZDCR v Minister for Immigration [2004] FMCA 1094). The applicants sought leave to appeal from that decision by filing an application in this court on 8 November 2004 which Conti J dismissed with costs on 13 May 2004 (SZDCR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 712).

3. The applicants then sought special leave to appeal from the High Court of Australia which on 8 September 2005 dismissed the application (SZDCR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 728). As Hayne J, giving the judgment of himself and Callinan J, said in those reasons:

   ‘In none of the applications and in none of the material filed in support was there any attempt to identify a sufficient legal or factual basis in the particular case for any of the contentions or to relate the complaints made to what happened in the courts below or in the Tribunal which in any event in each case appears to us to have been entirely orthodox and untainted by any discernible error.’

4. The Federal Magistrate noted that what was sought to be done before him in the decision, the subject of this application, was to challenge the original decision of the delegate of the Minister notwithstanding that they had proceeded with a merits review before the Refugee Review Tribunal that had been the subject of the decision of the Tribunal given in February 2004. 

5. The Full Court of this Court in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 352-354 [28]-[32] held that where there had been a merits review of the original decision-maker's decision the right of complaint concerning the procedures by which the original decision-maker's decision was obtained became subsumed in the merits review and that it was only errors it the reviewer's decision-making process that were amenable to judicial review on an application such as the present: see too Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

6. The applicants were notified by a letter from the registry dated 23 February 2006 that the matter was for hearing today.  The applicants' address for service is in the River Haven Caravan Park at Wood Wood in Victoria.  Mr Carter, who appears for the Minister has informed me that on previous occasion the applicants have appeared, including before the Federal Magistrate from whose decision this application is brought, notwithstanding an affidavit of the first applicant sworn 5 December 2005 in which he said he was so sick he was not able to attend the hearing.  The Federal Magistrates Court file reveals that “Applicant in person” appeared before his Honour at the hearing, although it does not say which of the two applicants was being referred to.

7. The matter was called outside the court today and there was no appearance.  I am satisfied that the applicants have had a sufficient time to receive notice of the hearing and to make some form of communication in the event that the hearing was inconvenient because of their location in Victoria.  There being no appearance I am of the opinion that I should dismiss the application.

8. The Minister has sought costs fixed in the sum of $750.

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

Associate:

Dated:   3 April 2006

Applicants:	No appearance
Solicitor for the Respondent:	Spark Helmore
Date of Hearing:	1 March 2006
Date of Judgment:	1 March 2006