SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 868

FEDERAL COURT OF AUSTRALIA

SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 868 SZDZI AND ANOR v Minister for Immigration and Multicultural and Indigenous Affairs NSD 274 of 2005 ALLSOP J 24 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 274 of 2005

BETWEEN: SZDZI

FIRST APPLICANT

SZDZJ

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 24 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal be granted from the orders of the Federal Magistrate made on 11 February 2005.

2. For the present, the appeal remain in the docket of Allsop J.

3. The costs of the application for leave be reserved and be dealt with on the appeal.

4. The appeal be stood over to a date to be fixed for directions.

THE COURT DIRECTS 1. Within 7 days the applicant file and serve submissions as to whether one or three judges should hear the appeal. 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 274 of 2005

BETWEEN: SZDZI

FIRST APPLICANT

SZDZJ

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 24 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter the applicants seek leave to appeal from orders made by a Federal Magistrate on 11 February 2005 summarily dismissing the claim of the applicants in the Federal Magistrates Court as an abuse and as vexatious. The application before me is a leave application. I do not propose to set out the well-known principles as to the circumstances in which leave should be given in any detail. 2 The first relevant criterion to establish is whether there is sufficient doubt attending the decision in question to warrant moving to the second limb of the test. Having heard, if I may say so with respect, the usual careful submissions of Mr Johnson he has not allayed my concerns as to the possible arguments in relation to paragraph 32 of the Federal Magistrate's reasons. I must be careful at this level of the application not to form concluded views about the approach of the Federal Magistrate. However it seems to me there are real issues as to whether in the circumstances that were before the Federal Magistrate it was open for the Federal Magistrate to draw the conclusion that the propounding of the applicants' claims were vexatious and abusive. Thus I need to direct myself to the issue as to whether or not there is any utility in the appeal being allowed. 3 I am not persuaded by Mr Johnson that there is no utility in the success of the appeal. The learned Federal Magistrate spent some time discussing the grounds of the review. He did not however deal with the matter as he could have sought to on the basis that the grounds were hopeless. In saying that I am not expressing a conclusion that they are hopeless. There is probably much to be said for the proposition that the complaints of the applicant about the Refugee Review Tribunal's decision were heavily factually based but, as I have said, the Federal Magistrate did not conclude that the proceedings were an abuse of process because they were substantively hopeless. He concluded that the matter was an abuse and was vexatious for the following reasons at [32]: In the absence of any clear grounds for review, the remaining issue is whether the applicants should be permitted to further pursue their application or whether it is an abuse of process and should be dismissed accordingly. I believe that the application on the applicants' own admission falls clearly within the provisions given by Driver FM in SZBQW and there are a number of decisions which support this approach. The applicants also have a problem in that there has been no information or evidence forwarded to this Court to explain the delay between the time of abandoning the proceedings in the Federal Court, allegedly on the advice concerning the changes in legislation, and the time of the current application. There is no evidence that there has been any attempt in this intervening period by the applicants to pursue their claim. 4 The first applicant, not under oath and not on affidavit explained to the Federal Magistrate the history of the matter. There was no evidence taken and there was no cross-examination. The first applicant explained to the Federal Magistrate that the application had been abandoned in 2001 because of the passing of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) bringing in the privative clause regime. Application was then made to the Minister under s 417 of the Migration Act 1958 (Cth). Rejection of that application made under s 417 was communicated in May 2004. Meanwhile in February 2003, the High Court had dealt with the privative clause in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 5 Tolerably promptly after the refusal of the s 417 application the applicants brought their application in the Federal Magistrates Court. Because of the decision in Plaintiff S157 no question of extension of time arose, that is because, if the applicants were able to show jurisdictional error, the decision was not a privative clause decision and the application was not out of time. The prior voluntary discontinuance of the action explained otherwise than on oath as it was did not disentitle the applicants from bringing a new proceeding. 6 Mr Johnson carefully pointed out decisions such as M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 where the Full Court, presided over by the Chief Justice held that applications under s 417 would not usually amount to sufficient circumstances alone to ground an extension of time. That, with respect, however was not the issue before the Federal Magistrate. The Federal Magistrate was being asked by the Minister to make an interlocutory order to deny the applicants a final hearing, that is, to deny them the opportunity to have a Court, exercising the judicial power of the Commonwealth, deal with the claim that the Executive arm of government in the form of the Tribunal had failed to exercise its functions according to law. 7 The basis of this request was that the steps being taken by the applicants to propound those claims were abusive and vexatious. In my view there are real questions as to whether the Federal Magistrate could, according to law, come to the conclusions he did applying proper principle to the task before him. That is not to express any view whatsoever about whether the conclusions in [32] were open to him. It is to express a view that they were real issues for decision. If there was an error in approach in [32] the consequences are most serious. They are most serious whether or not the applicants have good or weak grounds for prospects of success in the final application. The consequences are serious because the order, though interlocutory in terms, denies the applicants the access on the application to their day in court to deal with her complaints as to the conduct of the Refugee Review Tribunal. 8 For the above reasons I propose to grant leave to appeal from the orders made by the Federal Magistrate on 11 February 2005. I order that for the present the matter remain in my docket. I order that the costs of the application for leave be costs on the appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.