SZDVJ & Ors v MIMIA

[2005] HCATrans 830

[2005] HCATrans 830

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S275 of 2005

B e t w e e n -

SZDVJ

First Applicant

SZDVK

Second Applicant

SZDVL

Third Applicant

SZDVM

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 9.03 AM

Copyright in the High Court of Australia

__________________

McHUGH J: The applicants are four members of a family: father, mother and two children. They are citizens of India. On 13 May 2005, the Federal Court dismissed their application for an extension of time in which to file an application for leave to appeal against a decision of a Federal Magistrate, made on 12 October 2004, in which the Federal Magistrate summarily dismissed their application pursuant to r 13.10(a) of the Federal Magistrates Court Rules, on the basis that the application did not disclose a reasonable cause of action.  After considering the various substantive arguments put by the applicants in the Federal Court, Also J determined that the appeal would not have any prospects of success and dismissed the application.  The applicants seek special leave to appeal from that decision.  

The applicants put forward, as a proposed question justifying a grant of special leave to appeal to this Court, “How to balance the interests of justice with the concept that [an] appeal before the appeal courts should be [an] appeal within the strict sense and not an appeal by way of rehearing.”  This question seeks to cast in legal terms what is nothing more than an attempt to obtain a rehearing of the case on its own facts.  It would be neither possible nor appropriate to attempt to lay down a rule in response to this type of question.  As we said in Skaf & Ors v The Queen [2005] HCATrans 744:

“It needs to be said again that the questions presented should be in a form that shows a summary of the issues said to arise with enough legal content and, where applicable, critical factual matters to give the reader an understanding of the issue.  Questions such as how should a trial judge direct a jury as to, what is the principle that applies or what circumstances permit a judge to are not questions that formulate a special leave question.

This Court cannot constitutionally give advisory opinions and the Court cannot determine questions that are framed in the abstract and which are advisory in nature”.

The question presented by the applicant does not meet the requirements of a question warranting special leave.  The applicants have not identified any error of law which could be the subject of an appeal to this Court.  Accordingly, the application must be dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 9.04 AM THE MATTER WAS CONCLUDED