SZBML v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1195

FEDERAL COURT OF AUSTRALIA SZBML v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1195 SZBML v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1062 of 2004 BENNETT J SYDNEY 14 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1062 OF 2004

BETWEEN: SZBML

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 14 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal is refused. 2. The purported appeal is dismissed. 3. The applicant is to pay the respondent's costs in the sum of $2000. 4. No further application by the applicant to review the decision of the Tribunal dated 18 June 2002 shall be accepted for filing, except by leave of the Court.

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 N1062 OF 2004

BETWEEN: SZBML

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 14 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment and interlocutory orders made by Federal Magistrate Driver on 21 June 2004. His Honour summarily dismissed as incompetent the applicant's application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal ('the Tribunal') dated 18 June 2002. The Tribunal affirmed a decision of a delegate of the respondent ('the delegate') to refuse to grant to the applicant a protection (class XA) visa. 2 The basis for his Honour's decision was that the application was filed more than the 28 days after the notification of the Tribunal's decision prescribed in s 477(1A) of the Migration Act 1958 (Cth) ('the Act'). His Honour found that the decision of the Tribunal is a privative clause decision. As such, the time limit in s 477(1A) of the Act applies. Section 477(2) precludes the Federal Magistrates Court from extending that time limit. Accordingly, his Honour determined that the appeal was incompetent and should be summarily dismissed. 3 The decision of the Federal Magistrates Court to dismiss a matter summarily is interlocutory: Re Luck (2003) 203 ALR 1 at 4; Wride v Schulze [2004] FCAFC 216 at [15] –[17]; s 24(1A) of the Federal Court of Australia Act 1976 (Cth)('Federal Court Act') provides that an appeal cannot be brought from an interlocutory decision of the Federal Magistrates Court without leave. Accordingly, and with the consent of the parties, this matter is to be treated as an application for leave to appeal. 4 The procedural history of this case has some importance: · On 18 June 2002, the Tribunal affirmed a decision of the delegate refusing the applicant's application for a protection (class XA) visa. · On 6 August 2002, the applicant filed in the High Court a draft order nisi for review of the Tribunal's decision. On 7 February 2003, Justice Hayne remitted the matter to the Federal Court. · On 13 June 2003, Selway J of this Court, dismissed the application as disclosing no reasonable cause of action. His Honour held that there was no jurisdictional error in the Tribunal's decision. · On 24 September 2003, the applicant filed in the Federal Magistrates Court a fresh application for review of the Tribunal's decision. · On 15 January 2004, the respondent filed in the Federal Magistrates Court a notice of motion for summary dismissal. · On 5 May 2004, the respondent filed in the Federal Magistrates Court a notice of objection to competency based upon s 477(1A) of the Act. Section 477(1A) provides that an application to the Federal Magistrates Court for judicial review in respect of a privative clause decision under s 483A of the Act must be made within 28 days of the notification of the decision. The applicant did not make his application to the Federal Magistrates Court within 28 days of notification of the Tribunal's decision. · On 21 June 2004, Driver FM summarily dismissed the applicant's case as incompetent. His Honour followed the decision of Selway J. The effect of Selway J's decision was that the Tribunal's decision was a privative clause decision which attracted the application of the s 477(1A) of the Act. · On 7 July 2004, the applicant filed a notice of appeal from the decision of Driver FM. · On 16 July 2004, the respondent filed a notice of objection to the competency of the appeal. · On 27 July 2004, I ordered that the purported notice of appeal be treated as an application for leave to appeal and ordered that the applicant file and serve an amended application for leave to appeal, supporting affidavit and draft notice of appeal by 10 August 2004 and written submissions by 25 August 2004. · On 10 August 2004 the applicant filed written submissions. 5 The Notice of Appeal (which is being treated as the application for leave to appeal) consisted of two grounds: '2. Federal Magistrate ignore my claim and ground set in my previous case. In fact R.R.T. decision was wrong and unjustified. 3. My decision was affected by denial of natural Justice issue.' 6 The applicant's written submissions include a section entitled 'The amended grounds and the decision records made following errors'. With the consent of the respondent, I have treated that section of the applicant's submissions as amended grounds of appeal. Each of those grounds relates to the Tribunal's decision. None of the grounds refers to the decision of the Federal Magistrate.