SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137

FEDERAL COURT OF AUSTRALIA

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 SZFOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 702 OF 2007

RYAN J

3 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 702 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFOZ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J DATE OF ORDER: 3 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the existing respondent be amended to read "Minister for Immigration and Citizenship". 2. The Refugee Review Tribunal be added as second respondent to the proceedings herein. 3. The motion on notice filed on 2 July 2007 seeking leave to appeal from the orders of the Federal Magistrates Court of Australia of 2 April 2007 be refused. 4. The purported notice of appeal filed on 23 April 2007 be struck out. 5. The appellant pay the first respondent's costs of the proceedings in this Court, such costs to be taxed in default of agreement. 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 702 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFOZ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 3 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The first respondent ("the Minister") has raised an objection to the competency of the appeal by the appellant against orders of Driver FM on 2 April 2007, dismissing an application for reinstatement of an application in the Federal Magistrates Court, and to set aside orders which had been made by the Federal Magistrates Court on 20 June 2006 for costs in relation to that application. 2 By way of background, the appellant, a Fijian citizen, first arrived in Australia on 23 September 2003 and, on 13 October 2003, lodged an application for a protection visa. The application was refused by a delegate of the Minister on 15 October 2003 and that refusal was affirmed by the Refugee Review Tribunal ("the Tribunal") in a decision handed down on 11 February 2004. On 25 January 2005, the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. 3 On 31 May 2006 the appellant filed a notice of discontinuance in relation to that application and orders were made by Driver FM on 20 June 2006 that the appellant pay the Minister's costs and disbursements of and incidental to the discontinued application. On 12 February 2007, the appellant applied to the Federal Magistrates Court to re-open the matter on grounds that the appellant had "fresh evidence" to support his case. Further, the appellant requested that the Federal Magistrates Court entertain a further application and that the appellant's bridging visa be extended until the hearing. In an affidavit filed on 23 March 2007, the appellant indicated that he had sought Ministerial intervention under s 417 of the Migration Act 1958 (Cth) ("the Act") on 19 June 2006 after filing the notice of discontinuance. That request had been refused on 20 September 2006. 4 In reasons for judgment given at the end of the hearing on 2 April 2007, Driver FM dismissed the application to reinstate the discontinued proceeding as insufficient cause had been shown for taking that course. The learned Federal Magistrate held that it was not apparent on the material before him that any injustice had occurred in the matter. His Honour considered that the appellant had merely changed his mind after his request for Ministerial intervention had been refused. 5 His Honour had regard to the grounds of review raised in the amended application and concluded; '[12] That is not to say that the proposed amended application would be doomed. It would face difficulties but there is sufficient in it to support a serious contest over the validity of the Tribunal decision.