SZIHN v Minister for Immigration and Multicultural Affairs

[2006] FCA 1091

FEDERAL COURT OF AUSTRALIA

SZIHN v Minister for Immigration and Multicultural Affairs [2006] FCA 1091

SZIHN AND SZIHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1140 OF 2006

STONE J
17 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1140 OF 2006

BETWEEN:

SZIHN
First Applicant

SZIHO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	STONE J
DATE OF ORDER:	17 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs of the application.

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 1140 OF 2006

BETWEEN:

SZIHN
First Applicant

SZIHO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	STONE J
DATE:	17 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants request leave to appeal from a decision of Scarlett FM made on 24 May 2006 in which his Honour dismissed their application for review of a decision made by a delegate of the Minister. His Honour held that the applicants’ application was incompetent, as it is the Refugee Review Tribunal that has jurisdiction to review such decisions, not the Federal Magistrates Court. As his Honour’s decision is interlocutory in character the applicants require the leave of the Court to appeal from it; s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2. The applicants sought to file a draft notice of appeal in this Court, which mentioned five grounds of appeal.  These can be summarised as alleging that the Federal Magistrate erred in rejecting the principal applicant’s application for an adjournment of the hearing on 24 May 2006 and in entering summary judgment against the applicant.  

3. Irrespective of the merits of the application for an adjournment or the reasons for the applicants’ non-appearance, his Honour was correct in holding that the Federal Magistrates Court does not have jurisdiction to hear an appeal from a decision of a delegate of the Minister. Section 476(2) of the Migration Act 1958 (Cth) provides that the Federal Magistrates Court has no jurisdiction to hear an appeal from a “primary decision”. Relevantly, the definition of a “primary decision” includes a decision of the Minister’s delegate on an application for a protection visa; s 476(4). Such decisions are reviewable in the Refugee Review Tribunal pursuant to s 411(1)(c) of the Act.

4. For these reasons, the applicants have no prospect of success in this Court and a grant of the leave they seek would be futile.  Accordingly I must dismiss the present application and order that the applicants pay the respondent’s costs of the application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        17 August 2006

Counsel for the Applicants:	The first applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 2006
Date of Judgment:	17 August 2006