Swee Yen Tay v Migration Review Tribunal

Swee Yen Tay v Migration Review Tribunal - [2009] FCA 591 - FCA 2009 case summary — Zoe

REASONS FOR JUDGMENT 1 On 25 May 2009, the second respondent applied by notice of motion for an order for summary judgment against the applicant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). On 2 June 2009, I made such an order and I said I would deliver my reasons. These are my reasons. 2 The background to the proceeding and the issues it raises are set out in my reasons dealing with an earlier notice of motion filed by the second respondent: Swee Yen Tay v Migration Review Tribunal [2009] FCA 515. It is not necessary to repeat what I there said. 3 The applicant accepts that I am bound by Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 ("Xie") and that the decision in Xie means that her application for a declaration must be refused. She wishes to challenge the correctness of Xie in the Full Court, and outlined before me some of the submissions she wishes to put to the Full Court in support of her contention that the decision in Xie is wrong. 4 In light of the decision in Xie, the applicant's proceeding has no reasonable prospect of success within s 31A of the Federal Court Act and it is appropriate to enter summary judgment. 5 In my previous reasons, I alluded to a possible argument that relief of the nature sought by the applicant might be refused on the discretionary ground that there is an alternative remedy (at [41]). The second respondent did not rely on that as an independent ground for the conclusion that the applicant's claim for a declaration must fail. Had it done so, it would have been necessary to consider the authorities, including Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427-428 per Walsh J, at 438 per Gibbs J; Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 290 per Lord Goddard (see also Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow & Lehane's Equity Doctrines & Remedies (4th ed, Butterworths LexisNexis, 2002) at 626 [19‑105]). I simply record these matters so that it is clear that I have granted summary judgment because I am bound to follow the decision in Xie. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

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