FEDERAL COURT OF AUSTRALIA

SZFEG v Minister for Immigration and Citizenship [2007] FCA 448

SZFEG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 173 OF 2007

MOORE J

27 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave be refused if leave be necessary.

2.                  The appeal otherwise be dismissed.

3.                  The applicant pay the first respondent's costs fixed in the sum of $1000.

4.                  The name of the first respondent be amended to "Minister for Immigration and Citizenship".

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is what purports to be an appeal against a judgment of a Federal Magistrate of 19 January 2007: see SZFEG v Minister for Immigration & Anor [2007] FMCA 44.  Her Honour dismissed as an abuse of process an application filed on 28 September 2006 in that Court.  That application sought the judicial review of a decision of the Refugee Review Tribunal of 4 September 2006 in which the Tribunal found that it did not have jurisdiction to deal with an application for review of a decision of the delegate of the first respondent of 30 April 2004.  The Tribunal made that decision in circumstances where there had been an earlier decision of the Tribunal given on 26 October 2004 affirming the delegate’s decision.

2                     The first Tribunal decision was the subject of proceedings in the Federal Magistrates Court, this Court and the High Court: see SZFEG v Minister for Immigration [2005] FMCA 834, SZFEG v Minister for Immigration and Multicultural Affairs [2005] FCA 1405 and SZFEG v Minister for Immigration and Multicultural Affairs [2006] HCATrans 189.  It is not apparent to me that the Federal Magistrate erred in reaching the conclusion she did. 

3                     The better view is probably that this should be an application for leave to appeal the Federal Magistrate's decision.  Accordingly, I refuse leave if leave is necessary and otherwise dismiss the appeal.  I order the applicant to pay the first respondent’s costs and I fix those costs in the sum of $1000.  Further, I order that the name of the first respondent be amended to read, “The Minister for Immigration and Citizenship”. 

4                     The first respondent has also sought an order preventing the Registry of this Court from accepting for filing further proceedings in this Court without prior leave of the Court.  In the absence of such an order being made by the Federal Magistrate, it is probably inappropriate or unnecessary to make such an order in this Court and no such order is made.

Associate:

Dated:         2 April 2007