FEDERAL COURT OF AUSTRALIA SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 445 MIGRATION – appeal of interlocutory decision of Federal Magistrate – leave to appeal granted – appeal dismissed Migration Act 1958 (Cth) SZBXA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 361 of 2004 HILL J 15 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 361 OF 2004 BETWEEN: SZBXA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 15 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the applicant to appeal the interlocutory decision of the Federal Magistrate. 2. The appeal be dismissed. 3. The applicant pay the Minister's costs of the appeal on an indemnity basis. 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 N 361 OF 2004 BETWEEN: SZBXA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE: 15 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 13 November 2003, the applicant filed an application for judicial review in the Federal Magistrates Court. The application concerned a decision of the Refugee Review Tribunal made on 9 January 2002 affirming the decision of the Respondent Minister for Immigration & Multicultural & Indigenous Affairs (the "Minister") not to grant a protection visa. The learned Magistrate dismissed the application on the basis that it was an abuse of process. The circumstances which explain why the Magistrate came to this decision are set out in a chronology, which forms part of the Magistrate's decision. I set out this chronology as follows: 02.09.99 Applicant arrived in Australia. 22.09.99 Applicant applied for a protection visa. 09.11.99 Delegate of the respondent refused protection visa application. 30.11.99 Application for review to RRT. 26.11.01 Applicant attended RRT hearing. 05.02.02 RRT handed down decision affirming the decision of the delegate. 01.03.02 Applicant filed an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) in the Federal Court of Australia. · Proceedings no. N156 of 2002. 14.05.02 Justice Wilcox dismissed the application with costs because the applicant failed to appear when the matter was called for hearing. 03.06.02 Applicant filed a notice of appeal in the Full Court of the Federal Court of Australia seeking to appeal against the orders and judgment of Justice Wilcox of 14 May 2002. · Proceedings no. N513 of 2002 21.08.02 Applicant filed a notice of motion and an accompanying affidavit in the Federal Court of Australia seeking to set aside the orders of Justice Wilcox dated 14 May 2002. 03.09.02 Justice Wilcox refused the applicant's notice of motion to set aside orders. 24.10.02 Applicant filed a notice of motion and accompanying affidavit in the Full Court of the Federal Court of Australia seeking an adjournment of the scheduled hearing date of 6 November 2002. 06.11.02 Justice Madgwick, Emmett and Conti dismissed the applicant's notice of motion and application for leave to appeal from the orders of Justice Wilcox given on 14 May 2002 and 3 September 2002. Notice of appeal filed on 3 June 2002 held to be incompetent because of the absence of leave to appeal from the orders made by Wilcox J on 14 May 2002. 03.12.02 Applicant filed in the High Court of Australia, an application for special leave to appeal from the judgment of Justices Madgwick, Emmet and Conti of 6 November 2002. · Proceedings no. S445 of 2003. 14.05.03 Applicant filed a draft notice of appeal in the High Court. 13.11.03 Applicant filed an application in the Federal Magistrates Court of Australia. · Proceedings no. SZ2451 of 2003. 14.11.03 At approximately 3.00pm the applicant attended the offices of the solicitors for the respondent to obtain the respondent's consent to discontinue his proceedings. Consent was refused on the basis of a concern that the applicant was merely going to re-file another application. At approximately 4.41pm the solicitors for the respondent received a facsimile from the High Court Registry attaching a signed notice of discontinuance that had been filed in the High Court on 14 November 2003. 2 The Magistrate also made orders that the applicant not be permitted to institute further proceedings in the Federal Magistrates Court in respect of the decision of the Tribunal unless leave to do so was given. His Honour also made a costs order in an amount which reflected indemnity costs. The applicant then sought leave of this court to appeal against the decision of the Magistrate. Leave to appeal would be required so long as the decision of the Magistrate was interlocutory. 3 The matter came before me some days ago when the solicitor for the Minister somewhat aggressively wished that the matter be heard forthwith. I advised the applicant at that time that I would stand it over until this morning and that he would be well advised to seek legal representation. He is still unrepresented this morning. The solicitor for the Minister, this morning, also sought leave to rely upon a notice of contention. I granted that leave on the basis that it be filed within the next 48 hours. 4 I am of the view that the Magistrate, while arriving at the correct result dismissing the application, did not have jurisdiction to hear the matter because the application for judicial review was not made within the 28 days of notification of the decision of the Tribunal as required by s 477 of the Migration Act 1958 (Cth) (the "Act"). Neither the Magistrates Court, nor for that matter this court, have jurisdiction to extend the time in which an application for judicial review may be made. The applicant requested that I grant him an adjournment to permit him to obtain legal representation. I refused. To do so would be an exercise in futility. Having regard to the history of these proceedings as it appears in the chronology and to the mandatory time limits which are imposed in the Act on applications for judicial review, I am firmly of the view that an adjournment should not be granted. 5 The applicant otherwise had nothing to say as to the merits of his appeal or his application for leave to appeal. There is no doubt that if the Magistrate had jurisdiction it would have been appropriate for him to dismiss the application on the basis that it was an abuse of process.However, assuming the decision to be reviewed was a privative clause decision as it was, the learned Magistrate did not have the jurisdiction to embark upon hearing the application. 6 The question which arises is therefore whether I should merely refuse leave to appeal or whether I should accept the view of the Minister that the Magistrate had no jurisdiction and thus grant leave to appeal on the grounds that the Magistrate wrongly exercised jurisdiction, but then dismiss the appeal. 7 The solicitor for the Minister has requested that I make two further orders whichever course I adopt. The first of these orders is in similar terms to that made by the Magistrate. The second order sought is that the applicant before me pay the Minister's costs on an indemnity basis. Given the history of these proceedings, I have no difficulty with the second of these orders. 8 There is I think a difficulty, however, about the first of them. The applicant has not sought to institute proceedings again in this court for judicial review. The jurisdiction I am now exercising is the jurisdiction of a full court of this court. I should perhaps note that the Chief Justice determined that any appeal in the matter should be heard by a single judge. There is certainly no evidence before me that suggests that the applicant proposes to institute another application in this court for judicial review, although it might perhaps be inferred that it is a possibility. 9 In the circumstances I do not propose to make the first of the orders sought. The applicant should however be warned that were he to attempt to commence proceedings again in this court for judicial review of the same decision, he could expect that orders would thereafter be made to that effect in addition to orders that the Minister's costs be paid on an indemnity basis. 10 I would accordingly grant leave to appeal from the decision of the Magistrate but dismiss the appeal. I order the applicant to pay the Minister's costs on an indemnity basis. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 15 April 2004 Applicant appeared in person Counsel for the Respondent: Bernadette Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 April 2004 Date of Judgment: 15 April 2004