SZEVR v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 262

FEDERAL COURT OF AUSTRALIA

SZEVR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 262

SZEVR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1982 of 2004

JACOBSON J
11 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1982 OF 2004

BETWEEN:	SZEVR APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	11 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The adult applicants pay costs of the application fixed in the amount of $1400.00.

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	N 1982 OF 2004

BETWEEN:	SZEVR APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	11 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the orders and judgment of Federal Magistrate Mowbray dated 8 December 2004. 

2. On that date the learned Federal Magistrate upheld an objection to competency filed on 20 July 2004 and dismissed an application for judicial review of a decision of the Refugee Review Tribunal  (“the RRT”), he also made an order for payment of costs in a fixed amount.  The Magistrate also made an order that no further application by the applicants to review the decision of the RRT, handed down on 5 December 2002, be accepted for filing except with the leave of the court.

3. The applicants are a husband, a wife and their children.  Initially there were four children joined as applicants.  However, yesterday, on 10 March 2005 I made orders discontinuing the application on the part of the third applicant.  I am informed by the husband who appeared before me today in person that the party who has withdrawn was one of his adult sons.

4. Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Mowbray are interlocutory. The principles are well established, they are referred to in the authorities and I need not mention the cases. It is sufficient to say that an applicant must demonstrate that the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered and whether any substantial injustice would result from the refusal of leave.

5. The applicants are citizens of Bangladesh.  The husband is the only one of the applicants who has appeared before me today.  He appears in person without legal representation.  I will refer to him as "the applicant". 

6. The applicants arrived in Australia on 9 July 2000.  They lodged applications for protection visas which eventually resulted in the decision of the RRT affirming a decision of the delegate of the Minister not to grant protection visas.

7. In his judgment of 8 December 2004 the Federal Magistrate traced the history of the proceedings.  These are set out in [3] to [7] of the judgment. 

8. There were previous proceedings before Wilcox J.  His Honour's reasons were affirmed by a Full Court and special leave to appeal was refused by the High Court. 

9. The application which was filed in the Federal Magistrates Court on 8 July 2004 set out five grounds of the application.  The Federal Magistrate noted that they were not particularised in any way and that there was an additional item which said “I will provide more details later”.

10. At [11] of his judgment, Mowbray FM observed that the decision of Wilcox J, which was upheld in the Full Court, made it clear that the RRT's findings were without any jurisdictional error.  Although the respondent pressed the objection to competency of the application before the Federal Magistrate there were other grounds relied upon in the respondent's motion, in particular, relating to estoppel and abuse of process.

11. The learned Magistrate noted that the application in the Federal Magistrates Court was filed outside the 28-day time limit prescribed by section 477(1)(a) of the Migration Act 1958 (Cth) and it was therefore not competent.

12. As to the order that no further application be filed for a review of the decision, the Federal Magistrate observed that a similar order had been made by Driver FM in SZDKV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 849. The learned Magistrate also referred to my decision in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (“SZDCJ”). The reference which was given seems to be incorrect. The correct reference is [2003] FCA 1500.

13. The applicant relied upon an affidavit sworn on 24 December 2004 in support of the present application.  The affidavit states the grounds in the most general terms, stating that the Federal Magistrate “erred in law determining whether this matter was reviewable in the Federal Magistrates Court” and the Court:

    “failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal which was handed down on 5 December 2002.
    …
    legal arguments were put before the Honourable Magistrates Court but arguments were not considered.

    I will provide more details later.”

14. The applicant did not put anything to me this morning to suggest any possible error in the reasons of the Federal Magistrate.  He said that he does not wish to return to Bangladesh because of fears for his safety.  As I pointed out to him, that is not a matter which I can deal with on the present application.  The principles are well settled, nothing has been put before me to cast any doubt on the correctness of the learned Magistrate's decision.

15. Insofar as the order that there be no further proceedings filed, the Magistrate had power to make that order.  Although he said that I left the question open in my decision in SZDCJ, in fact I said at [29] of the judgment that “The Federal Magistrates Court does have power to make an order in those terms”.

16. The applicant has not provided any particulars of a single ground upon which the Federal Magistrate was said to be in error.  No doubt has been cast upon the correctness of the Federal Magistrates decision.  There is no injustice in refusing leave to appeal because, as the Federal Magistrate observed, the decisions of Wilcox J and the Federal Court make it clear that there was no jurisdictional error in the findings of the RRT.

17. The orders of the court are:

    i.Leave to appeal is refused;

    ii.the adult applicants are to pay the costs of this application, fixed in the amount of $1400.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             16 March 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr Carter
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 March 2005
Date of Judgment:	11 March 2005