SZFGJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1450

FEDERAL COURT OF AUSTRALIA

SZFGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1450

SZFGJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1524 OF 2005

BENNETT J
7 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1524 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFGJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	7 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant pay the respondent’s costs in the sum of $500.

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	NSD1524 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFGJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	7 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant filed an application in the Federal Magistrates Court on 16 December 2004 seeking review of a decision of the Refugee Review Tribunal of 14 January 2002, which was handed down on 2 February 2002 (‘the first decision’).  In the first decision, the Tribunal affirmed the decision of a delegate of the Minister to refuse a protection visa to the applicant.  The first decision concerned the applicant and his wife and children. 

2. The first decision has already been considered by a judge of the court and, on appeal by the Full Court on 11 November 2003.  I note that I was a member of that Full Court and that the applicant, when asked, expressly raised no concern about my hearing this application.  Ms Rayment, who appears for the Minister, did express some concern but that was in the context of a necessity to consider the content of the Full Court’s decision.  As the matter has developed that was not necessary and all that is necessary to consider is the effect of the orders that were made by the Full Court.  In the circumstances I have formed the view that it is not inappropriate for me to hear this application.

3. The Full Court’s orders were that the appeal of the applicant's wife and children was upheld and that the orders made by the primary judge were set aside insofar as they related to those appellants.  The proceedings, as related to those appellants, were remitted to the primary judge for determination.  Importantly, the appeal insofar as it related to the applicant in these proceedings was dismissed with costs.

4. Stone J made the following orders on 10 February 2005, by consent, when the matter was before her Honour on remittal:

   ‘2. A writ  of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 14 January 2002 and handed down on 7 February 2002.

   3. A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 20 October 1997 according to law.’

5. It is somewhat unfortunate that those orders did not distinguish between so much of the first decision that related to the applicant and so much of the first decision that related to the wife and children.  However, it is clear that all that was referred to her Honour and then in turn to the Tribunal was so much of the decision that related to the successful appellants and not that part of the decision that related directly to the applicant, the unsuccessful appellant.

6. The decision of the Full Court did not rest there.  The applicant made an application for special leave to appeal to the High Court on 12 December 2003.  That was heard on 19 November 2004 when McHugh and Callinan JJ refused the application for leave.

7. The applicant then made another application for review of the first decision to the Federal Magistrates’ Court. The respondent filed a notice of objection to competency. The Federal Magistrate held that the Full Court had concluded that there was no jurisdictional error on the part of the Tribunal. Consequently the first decision was a privative clause decision. In those circumstances, as the application for review had been filed well outside the time prescribed in section 477(1)(a) of the Migration Act 1958 (Cth), the Federal Magistrate dismissed the application before him.

8. In an affidavit filed in this court the applicant, who appears in person, raises a number of broad grounds for his application.  The grounds amount to an assertion that the Federal Magistrate erred in law in failing to find jurisdictional error in the first decision.  While the applicant appeared before me today with an interpreter, he is fluent in English and was able to represent himself quite effectively.  The applicant was, however, unable to explain why the Federal Magistrate was in error in coming to his decision, other than relying on the mere fact that on its face the orders of Stone J seemed to refer to the whole of the first decision that had been sent back to the Tribunal.

9. The matter remitted by Stone J has been heard by the Tribunal (‘the second decision’).  An appeal against the second decision in which the Tribunal affirmed the decision of the delegate is before the Federal Magistrate’s Court and a number of these matters are being presented there.  In the circumstances the applicant will have every opportunity to deal further with any relevance of his own status so far as his wife’s application is concerned. 

10. The application is dismissed.  The Minister has sought costs in the sum of $500.  The applicant consents to that order.  I order the applicant pay the respondent's costs in the sum of $500.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            7 October 2005

The applicant appeared in person assisted by an interpreter.

Counsel for the Respondent:	B. Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 October 2005
Date of Judgment:	7 October 2005