SZEUB v Minister for Immigration & Citizenship

[2007] FCA 330

FEDERAL COURT OF AUSTRALIA

SZEUB v Minister for Immigration & Citizenship [2007] FCA 330

SZEUB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2141 OF 2006

BUCHANAN J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2141 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)Leave is given to amend the title of the proceedings to refer to the first respondent as the Minister for Immigration and Citizenship;

(2)The application for leave to appeal is 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 2141 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This matter was commenced as an application for leave to appeal against a judgment of Emmett FM, given on 18 October 2006.  The application in this Court was filed on 1 November 2006.  Emmett FM dismissed a purported application for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’), dated 11 November 2003. 

2. On 16 November 2006, Deputy Registrar Farrell directed that the applicant file and serve written submissions no later than five days before the hearing of the appeal.  That was not done. 

3. This morning the applicant made some short submissions to me through his interpreter.  There is also with the papers a short affidavit filed in support of the application for leave to appeal.  The essence of the applicant's submissions before me this morning was to ask for more time to collect materials from India for his case.  I indicated that I would treat those remarks as an application for adjournment, but I declined to adjourn the proceedings.

4. The applicant is a citizen of India.  He arrived in Australia on 1 March 2003.  On 27 March 2003 he made an application for a protection visa.  On 11 November 2003 a delegate of the Minister refused to grant a protection visa.  On 11 December 2003 he applied for review of that decision before the Refugee Review Tribunal (‘the RRT’).  On 13 May 2004 the RRT affirmed the delegate’s decision.  On 10 June 2004 the applicant sought judicial review in the Federal Magistrates Court.  On 8 August 2005 Nicholls FM dismissed the application because no jurisdictional error had been shown.  The applicant appealed to the Federal Court of Australia.  On 28 November 2005 Moore J dismissed the appeal because it did not appear to his Honour that Nicholls FM had erred in concluding that the RRT had not fallen into jurisdictional error. 

5. On 9 December 2005 the applicant purported to make an application for judicial review to the Federal Magistrates Court against the initial decision of the delegate of 11 November 2003. 

6. The jurisdiction of the Federal Magistrates Court is set out in s 476 of the Migration Act 1958 (Cth) (‘the Act’). Section 476(2) provides that the Federal Magistrates Court has no jurisdiction in relation to:

   ‘(a)a primary decision’.

7. By s 476(4) of the Act, ‘primary decision’ is defined to include a decision that is reviewable under Part 7 of Division 2 of the Act. (Part 7 provides the mechanism for review of decisions by the RRT.) The delegate’s decision was a primary decision as thus defined. Indeed it had earlier been reviewed. The purported application made on 9 December 2005 was clearly incompetent.

8. On 10 June 2006 the first respondent sought an order that the proceedings be dismissed under rule 13.10 of the Federal Magistrates Court Rules. On 20 April 2006 the first respondent filed an amended document alleging lack of jurisdiction. Emmett FM dealt with the application on 18 October 2006. She found, correctly in my view, that the Federal Magistrates Court had no jurisdiction to deal with the purported application and dismissed it. Although the first respondent had sought summary dismissal of the application under rule 13.10, Emmett FM recorded in the first paragraph of her reasons for judgment that the power to make an order dismissing the proceedings before her was to be found in rules 44.12 and 44.11 of the Federal Magistrates Court Rules.

9. Special provisions are made by Part 44 in Chapter 6 of the Federal Magistrates Court Rules for dealing with proceedings under the Act, which the application purported to be. These provisions include a power of dismissal under rule 44.12. Dismissal of proceedings under rule 44.12(1)(a), as this was, is stated by rule 44.12(2) to be an interlocutory decision. Leave to appeal is therefore required by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

10. Although the dismissal of the application was an interlocutory decision it had the result of finally disposing of the application.  Normally leave will be more readily granted in such a case than where a matter of procedure only is involved.  On the other hand, leave will not be granted to pursue an appeal with no prospects of success.  In my view the present appeal is in this category. 

11. Accordingly, I dismiss the application for leave to appeal.  In my view it is appropriate the application be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:
Dated:       9 March 2007

The Appellant was self-represented
Solicitor for the Respondent:	Mr P Reynolds of Clayton Utz
Date of Hearing:	23 February 2007
Date of Judgment:	23 February 2007