SZDJD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 121

FEDERAL COURT OF AUSTRALIA

SZDJD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 121

Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act1958 (Cth) s 474, 477(1)(a)

Re Luck (2003) 203 ALR 1 cited

SZDJD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1796 OF 2004

HELY J
9 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1796 OF 2004

BETWEEN:	SZDJD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	9 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

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 1796 OF 2004

BETWEEN:	SZDJD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	9 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Federal Magistrate Driver given on 29 November 2004.  The applicant is a citizen of Bangladesh who arrived in Australia on 9 November 1999.  His application for a protection visa was refused.  On 18 July 2002 the Refugee Review Tribunal (‘the RRT’) handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant.  The RRT was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh by reason of his religion or political opinion as he claimed. 

2. On 9 August 2002 an application for judicial review of the RRT’s decision was filed in the Federal Court. On 6 September 2002 that application was transferred to the Federal Magistrates Court. On 6 March 2003 Federal Magistrate Barnes dismissed the application. Her Honour specifically found that no jurisdictional error or denial of procedural fairness had been established. Her Honour found that the decision of the RRT was a privative clause decision within the meaning of s 474 of the Migration Act1958 (Cth) (‘the Act’).

3. On 20 March 2003 the applicant appealed from the decision of Federal Magistrate Barnes and on 11 June 2003 that appeal was dismissed by Whitlam J. On 25 June 2003 an application for special leave to appeal was made but that application was discontinued on 7 May 2004. In the meantime, on 19 April 2004 a further application for judicial review of the RRT’s decision was lodged in the Federal Magistrates Court. On 26 May 2004 the respondent lodged an objection as to the competency of that application, asserting that the application was lodged outside the time prescribed by s 477(1)(a) of the Act.

4. The respondent also took out a motion on 2 June 2004 for the summary dismissal of the application. On 29 November 2004 Federal Magistrate Driver gave his decision on the application as to competency. His Honour found that he had no jurisdiction to entertain the application, because there had been a final determination in the earlier proceedings that the decision of the RRT the subject of the application before his Honour was a privative clause decision and the time limits in s 477(1)(a) apply. There is no power in any Court to extend those time limits. Accordingly, his Honour dismissed the application summarily as incompetent.

5. On 3 December 2004 the applicant applied for leave to appeal from the decision of Federal Magistrate Driver pronounced on 29 November 2004.  The applicant recognises, and the authorities establish, that whatever the practical effect of his Honour’s decision it is interlocutory in character from which an appeal may not be brought except by leave.  See Re Luck (2003) 203 ALR 1 and Federal Court of Australia Act 1976 (Cth) s 24(1A).

6. Applications for leave or special leave to appeal to the Court  may be heard and determined by a single Judge or by a Full Court.  An application for leave to appeal must establish that the decision is attended by sufficient doubt to warrant its reconsideration by a judge or judges exercising the appellant jurisdiction of the Court and that substantial injustice would result if leave were refused supposing the decision to be wrong.

7. The grounds of appeal in the draft notice of appeal fail altogether to engage the Federal Magistrate’s decision.  In the circumstances of the present case they are simply meaningless.  The decision of the Federal Magistrate is clearly correct for the reasons which his Honour gave.  His Honour had no choice other than to dismiss the application as incompetent as he did. 

8. For those reasons the application for leave to appeal from that decision is refused with costs.

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

Associate:

Dated:             22 February 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 February 2005
Date of Judgment:	9 February 2005