SZEHH v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHH & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1692

MIGRATION – Practice and Procedure – application for judicial review of Refugee Review Tribunal decision – applicant’s claim that Notice of Discontinuance previously filed was due to misunderstanding – application for Notice of Discontinuance to be set aside – opposition to setting aside of Notice of Discontinuance.

Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B

NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340

Applicants SZEHH & SZEHI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG2668 of 2004

Delivered on: 22 November 2005

Delivered at: Sydney

Hearing date: 9 November 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicants

Advocate for the Respondent: Ms C Gray

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 6 October 2005, seeking to set aside a previous order of this Court granting leave to file a Notice of Discontinuance, is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2668 of 2004

SZEHH & SZEHI

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an application filed on 6 October 2005, the applicants move the Court for orders seeking to set aside previous orders of this Court.  On 29 August 2005 the applicants sought leave to file a Notice of Discontinuance which was granted and the application was dismissed with costs.

2. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 26 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   11 May 2001 and handed down on 1 June 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 12 December 2000 to refuse to grant the applicants protection (Class XA) visas.  The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.

3. The applicant husband, his wife and two children in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonyms “SZEHH” (applicant husband) and “SZEHI” (applicant wife).

4. The Court has power to set aside a Notice of Discontinuance pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) as part of its inherent power to prevent injustice if the circumstances are made out: Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 per Mansfield…