SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs

Case •

[2005] FCA 712

•

13 MAY 2005

FEDERAL COURT OF AUSTRALIA

SZDCR v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCA 712

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

SZDCR AND SZDCS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1624 OF 2004

CONTI J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1624 OF 2004

BETWEEN:

SZDCR
FIRST APPLICANT

SZDCS
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.        Applicants to pay the respondent’s costs assessed at $900.

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 1624 OF 2004

BETWEEN:

SZDCR
FIRST APPLICANT

SZDCS
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE:

13 MAY 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 8 November 2004 the applicants filed an application for leave to appeal from the judgment of the Federal Magistrate given on 5 November 2004.  The Federal Magistrate summarily dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 25 February 2004 which had earlier 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. In his reasons for judgment, the Federal Magistrate described in detail the circumstances leading up to his decision to summarily dismiss the applications for review.  The applicants were not able to provide any reasonable explanation for their failure to file an amended application particularising their purported grounds for review.  The only explanation offered by the applicants for their failure to comply with the order was that they needed ‘two more weeks’ for documents from India to arrive.  His Honour considered that those documents could only conceivably be relevant to a review of the merits of the Tribunal’s decision, and as such, were not sufficient justification for the substantial delay. 

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

    ‘1. I am the applicant of the above matters.

    2. My judicial review application was dismiss as non-compliance matter.

    3. I have no idea how I will flow the short minutes of order.

    4. I did not received advice from pilot scheme barrister.

    5. I am unrepresented.  Because of my financial hardship.

    6. I will provide more later.’

  5. Attached to the affidavit was a draft notice of appeal which reads literally as follows:

    ‘The single judge of the Federal Magistrates Court in his Honors judgement delivered on the 5/11/04 fail to find error of law, jurisdictional error, procedural fairness and relief under SECTION 39B of the Judiciary Act 1903.’

  6. The only conceivable attempt to explain their failure in complying with the Federal Magistrate’s order to file an amended application was the first applicant’s reference to the pilot scheme barrister made in his affidavit.  I observe that this reason was not put to the Federal Magistrate but rather it was suggested that the failure had been caused by a delay in receiving certain documents from India.  In response to my questions during today’s hearing, the applicants were unable to identify any error in the Federal Magistrate’s judgment, instead repeatedly asserting that were they given more time, they would find a lawyer. 

  7. In those circumstances I dismiss the application for leave to appeal.  I order the applicant to pay the costs of the Minister assessed in the amount of $900.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            1 June 2005

The applicants appeared in person
Solicitor for the Respondent: Sparke Helmore
Date of Hearing: 13 May 2005
Date of Judgment: 13 May 2005
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