SZSLE v Minister for Immigration and Border Protection

SZSLE
v
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR
[2014] HCASL 29
S277/2013

The applicant is a citizen of Bangladesh. On 19 August 2011, the applicant applied for a Protection (Class XA) visa, which was refused by a delegate of the first respondent. On 3 December 2012, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. The Tribunal doubted the applicant's credibility and rejected his claims. On 12 June 2013, the Federal Circuit Court of Australia (Driver J) dismissed an application for judicial review of the Tribunal's decision. On 7 November 2013, the Federal Court of Australia (Greenwood J) refused an application for leave to appeal from the decision of the Federal Circuit Court.
The applicant now seeks special leave to appeal from that decision. Section 33(4B) of the Federal Court of Australia Act 1976 (Cth) provides that "[a]n appeal must not be brought to the High Court from a judgment of the Court ... in the exercise of its appellate jurisdiction" in certain circumstances. One circumstance is where the judgment involves an application for leave to appeal to the Court (s 25(2)(a)).
It may be observed that an application for leave to appeal does not involve the exercise of appellate jurisdiction until leave is granted[1]. Since the applicant was not granted leave by Greenwood J to appeal, it follows that there was no appeal, and no exercise by the Federal Court of appellate jurisdiction. That notwithstanding, the general wording of s 33(4B) applies, such that an appeal from the decision of Greenwood J to this Court would be incompetent.
[1]Collins v The Queen (1975) 133 CLR 120 at 122; [1975] HCA 60; United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30]-[31]; [2001] HCA 61; see also Dobson v Australian Postal Corporation [2013] HCASL 140.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
6 March 2014 P.A. Keane

CaseChat Overview and Summary

The High Court was asked to consider an application for special leave to appeal a decision by the Federal Court of Australia regarding an immigration matter. The applicant, a Bangladeshi citizen, had applied for a Protection (Class XA) visa which was refused by a delegate of the Minister for Immigration and Border Protection. The Refugee Review Tribunal upheld the refusal and the Federal Circuit Court dismissed an application for judicial review. Greenwood J subsequently refused leave to appeal to the Federal Court. The applicant sought special leave to appeal to the High Court.

The central legal issue before the Court was whether an appeal could be brought to the High Court from a judgment of the Federal Court where the judgment involved an application for leave to appeal under section 33(4B) of the Federal Court of Australia Act 1976. The Court had to determine if an application for leave to appeal constituted the exercise of appellate jurisdiction.

The Court found that an application for leave to appeal does not involve the exercise of appellate jurisdiction until leave is granted. As the applicant was not granted leave by Greenwood J, no appeal and no exercise of appellate jurisdiction occurred. However, the general wording of section 33(4B) meant an appeal from the Federal Court to the High Court was incompetent. The Court held that special leave to appeal could not be granted.

The Court directed the Registrar to draw up, sign and seal an order dismissing the application for special leave to appeal.

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