SZDKI v Minister for Immigration and Multicultural Affairs

[2006] FCA 978

FEDERAL COURT OF AUSTRALIA

SZDKI v Minister for Immigration and Multicultural Affairs [2006] FCA 978

SZDKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1122 OF 2006

MOORE J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1122 OF 2006

BETWEEN:	SZDKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE OF ORDER:	4 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s 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 1122 OF 2006

BETWEEN:	SZDKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	4 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Magistrate of 16 May 2006. His Honour dismissed an application for judicial review, made pursuant to s 39B of the Judiciary Act 1903 (Cth), of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a protection visa. The relief sought in the application included an order that the Minister show cause why a remedy would not be granted under s 476 of the Migration act 1958 (Cth) in relation to the decision of the delegate.

2. The applicant had previously applied to the Federal Magistrates Court, unsuccessfully, for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 5 April 2004: SZDKI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1573. The Tribunal had decided it did not have jurisdiction to review the decision refusing the applicant a protection visa on the basis that the application for review was received outside the prescribed time limit. An appeal against the judgment of the Federal Magistrates Court to this Court was dismissed on 22 March 2006: SZDKI v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 280.

3. In the Federal Magistrate’s judgment of 16 May 2006, his Honour dismissed the application on the ground that the application was incompetent. Specifically, that the court’s jurisdiction was limited by the operation of s 476 which provides that the Federal Magistrate’s Court has no jurisdiction in relation to a primary decision. That is, relevantly, a delegate’s decision on a protection visa application reviewable under Part 7. His Honour concluded that there was an incontestable absence of jurisdiction due to previous determinations.

4. It is not apparent to me that the Federal Magistrate erred in dismissing the appeal as incompetent.  The applicant would have no prospects in any appeal were leave granted.  Accordingly, the application for leave to appeal should be dismissed. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        4 August 2006

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 July 2006
Date of Judgment:	4 August 2006