SZIDS v Minister for Immigration and Citizenship

[2008] FCA 1067

FEDERAL COURT OF AUSTRALIA

SZIDS v Minister for Immigration & Citizenship [2008] FCA 1067

SZIDS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1123 OF 2008

STONE J

18 JULY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1123 OF 2008

BETWEEN:

SZIDS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	18 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to appeal be 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 1123 OF 2008

BETWEEN:

SZIDS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	18 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant comes before the Court on an urgent basis seeking an extension of time within which to appeal from the decision of Cameron FM made on 22 October 2007.  His Honour dismissed the application for review of the decision of the Refugee Review Tribunal signed on 30 November 2005. 

2. The applicant applied to the Federal Magistrates Court for review of the Tribunal’s decision on 19 January 2006 and on 12 July 2006 Emmett FM dismissed the application with the consent of the parties.  On 31 August 2007 the applicant again commenced proceedings in the Federal Magistrates Court seeking a review of the Tribunal's decision.  In dismissing his application Cameron FM held that the applicant's claim for judicial review on the basis of jurisdictional error had already been determined and could not be re-litigated; SZIDS v Minister for Immigration & Citizenship [2007] FMCA 1812 at [12].

3. As an appeal from a decision of a Federal Magistrate must be made within 21 days of that decision, the applicant requires an extension of time within which to appeal.  As I explained to the applicant, the court will not grant an extension of time where to do so would be a futile exercise because any appeal would be bound to fail.  This is the case here.

4. The applicant's first application to the Federal Magistrate’s Court was dismissed by consent.  In Somanader v Minister for Immigration and Multicultural Affairs (2001) 178 ALR 677 Merkel J considered the effect of dismissal orders made by consent. His Honour said at 686:

   It is now well-established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest.  Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation …

5. Merkel J also referred to the decision of the High Court in Chamberlain v DCT (1988) 164 CLR 502 at 508 where the Deane, Toohey and Gaudron JJ said:

   The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date … [b]ut the principle of res judicata holds good in such a case.

   The decision of Cameron FM was consistent with the observations of Merkel J and of the High Court.

6. In support of his application the applicant made submissions that clearly had been put before the Federal Magistrate.  They must be rejected for the reasons given by his Honour.  In my view the decision below was correct for the reasons which his Honour gave.  For those same reasons the present application must be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        18 July 2008

The Applicant appeared in person.
Counsel for the Respondents:	T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	18 July 2008
Date of Judgment:	18 July 2008