SZFYI v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1. This is an application for leave to appeal from a judgment of Federal Magistrate Driver given on 22 August 2005. The learned federal magistrate dismissed an application for review as incompetent. Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of Federal Magistrate Driver are interlocutory. 2. The applicant is a citizen of India from the state of Tamil Nadu who claims to fear persecution in India because of his support for the Liberation Tigers of Tamil Elan and because he is a Muslim. 3. In a decision handed down on 2 October 2002, the RRT affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection visa. 4. The applicant was unsuccessful in his earlier application for review of the decision of the RRT. The application was brought in the Federal Magistrates Court ; see NADD v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FMCA 203 per Raphael FM, and on appeal to the Federal Court ; see NADD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1438 per Allsop J. 5. The High Court of Australia refused special leave to appeal on 3 March 2005; see NADD v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA Transcript 72. 6. At the first directions hearing of the present application in the Federal Magistrates Court, a registrar set the matter down for final hearing before Federal Magistrate Driver but he ordered that the matter only proceed to a final hearing if the respondent did not file an application seeking to have the matter struck out. 7. The respondent then filed a notice of objection to competency on the ground that the application for review had been made out of time. The hearing of the respondent's application was listed for 22 August 2005. 8. Section 477(1A) of the Migration Act 1958 (Cth) provides that applications to the Federal Magistrates Court must be made within 28 days of the notification of the Tribunal's decision. 9. The learned Federal Magistrate's reasons for dismissing the application as incompetent are set out at [4] to [6] of his reasons for judgment which I will repeat in full as follows:- "As I explained to the applicant the issue to be resolved is quite simple. If the decision of the RRT is a privitive clause decision his judicial review application is incompetent as it was not filed within time. Ordinarily, the question of whether a tribunal decision is a privative clause decision needs to be resolved at a final hearing. However, where that issue has already been determined by this Court or by the Federal Court, that issue can be decided at an interlocutory stage. In this case in his judgment on 15 May 2003 in NADD v Minister for Immigration [2003] FMCA 203, at paragraph 21, Raphael FM found that the RRT decision was free from any jurisdictional error. The decision of Raphael FM was affirmed on appeal by the Federal Court in NADD v Minister for Immigration [2003] FCA 1438. Allsop J found no error in the decision of Raphael FM. Further, at paragraph 25 his Honour stated: ' Having examined the Tribunal's reasons and the material before it as well as the reasons of the learned Magistrate at first instance, I see no error, jurisdictional or otherwise, which might be sufficient for the invocation of s 39B(1) or s 39B(1A)(c) of the Judiciary Act 1903 (Cth).'" 10. The applicant's submissions for leave to appeal were filed on 23 September 2005. The submissions make unparticularised claims that the RRTs decision was infected by jurisdictional error and it also makes complaints about the merits of the RRTs decision. The applicant's affidavit in support of the application for leave to appeal does not add anything which is capable of amounting to a ground of appeal. 11. When the applicant appeared before me today he did not seek to supplement his written submissions. He did, however, say that he has had "economic problems" and that he has been unable to get proper legal representation. I do not consider that this is a reason to grant an adjournment of the application, nor does this justify the grant of leave to appeal. 12. It is clear from the substantial record to which I have referred that proceedings have been on foot, initially in the Federal Magistrates Court and thereafter in this Court and the High Court, the first set of proceedings in the Federal Magistrates Court having been instituted in October 2002. It seems to me, therefore, that the applicant has had sufficient time within which to obtain legal advice or assistance. The principles upon which leave to appeal is granted are well known and need not be repeated; see Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397. 13. In my opinion, there is no doubt about the correctness of the decision of Federal Magistrate Driver. Moreover, the history of the proceedings before Raphael FM, Allsop J and the High Court shows that there would be no injustice resulting from the refusal of leave to appeal. 14. Accordingly, the orders I will make this morning are that the application for leave to appeal be refused with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.