SZHGY v Minister for Immigration and Multicultural Affairs

[2006] FCA 796

FEDERAL COURT OF AUSTRALIA

SZHGY v Minister for Immigration and Multicultural Affairs [2006] FCA 796

SZHGY V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 405 OF 2006

MOORE J
14 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 405 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHGY
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

14 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   Leave to appeal, if necessary, be refused.

2.   The appeal be dismissed.

3.   The appellant pay the first respondent's costs fixed in the sum of $1200.00.

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	NSD 405 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHGY
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	14 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a notice of appeal filed on 28 February 2006 against the judgment of a Federal Magistrate of 9 February 2006, concerning a decision of the Refugee Review Tribunal of 27 May 2003: see SZHGY v Minister for Immigration and Multicultural Affairs [2006] FMCA 223. The Federal Magistrate dismissed as incompetent the application for judicial review and directed that no further application be filed by the appellant for review of the Tribunal's decision of 27 May 2003 or the delegate's decision of 22 August 2002 without leave of the Court. His Honour's findings included that the Tribunal's decision was a privative clause decision such that the application was time barred under s 477(1A) of the Migration Act 1958 (Cth), that an issue estoppel arose and the doctrine of res judicata applied. 

2. The Minister submitted, probably correctly, that the appeal was incompetent as the decision of the Federal Magistrate was interlocutory and that leave to appeal was therefore required. 

3. The application to the Federal Magistrates Court which was filed on 5 October 2005 had been preceded by other litigation in which the appellant challenged the same Tribunal decision.  That earlier litigation took place in the Federal Magistrates Court, this Court and the High Court, culminating in a decision of the High Court to refuse special leave on 8 September 2005.  Nothing has been said by the appellant in this matter to suggest that any error attended the decision of the Federal Magistrate.  Accordingly, I order that if leave be necessary, leave to appeal be refused and that the appeal be dismissed.  The appellant is to pay the first respondent's costs fixed in the sum of $1200.00.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             10 July 2006

The Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 June 2006
Date of Judgment:	14 June 2006