FEDERAL COURT OF AUSTRALIA

SZKHI v Minister for Immigration & Citizenship [2008] FCA 1596

SZKHI and SZKHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1307 of 2008

EDMONDS J

15 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

2.                  The applicants pay the first respondent’s costs of the application.

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

Introduction

1                     This is an application for leave to appeal against the orders of the Federal Magistrates Court (Raphael FM) dated 28 July 2008 in SZHKI & Anor v Minister for Immigration & Anor (2008) FMCA 1094.  The Federal Magistrate dismissed the applicants’ judicial review application summarily at a hearing of the application of the first respondent (‘the Minister’) for summary dismissal. 

2                     There were two bases for the Minister’s application.  The first was that the application to the Federal Magistrates Court was out of time because it was not filed within 28 days of actual notification of the decision as required by subs 477(1) of the Migration Act 1958 (Cth) (‘the Act’).  The Federal Magistrates Court is not permitted to provide any extension of that time (subs 477(2)(a)) of the Act and the Federal Magistrate was satisfied that the ground had been made out. 

3                     The second basis for the Federal Magistrate’s decision is that it was a decision in respect of which the applicants had exercised all their legal powers of review, having had the matter considered by the Federal Magistrates Court, before Turner FM, (SZKHI v Minister for Immigration (2007) FMCA 1061 on 19 June 2007), by this Court before Stone J (SZKHI v Minister for Immigration (2007) FCA 1735 on 8 November 2007) and by the High Court on an application for special leave before Gummow and Kiefel JJ (SZKHI v Minister for Immigration (2008) HCASL 172 on 24 April 2008).

4                     In those circumstances, the proceedings in the Federal Magistrates Court sought to review the same decision of the second respondent (‘the Tribunal’) as was considered by each of those courts, and constituted in the mind of the Federal Magistrate, an abuse of process as well as an application in respect of a matter that is res judicata.  Consequently, the Federal Magistrate dismissed the substantive application.  In my view, his Honour’s order for summary dismissal was correct and may be upheld either on the basis that the application to the Federal Magistrates Court was incompetent or that the application was an abuse of process. 

5                     In the circumstances, there is no doubt in my mind that the decision of the Federal Magistrate is interlocutory and that it is appropriate that the applicants seek the leave of this Court to appeal.  In my view, the application for leave to appeal should be refused.  The applicants have failed to show any doubt about the correctness of the judgment below and failed to show that substantial injustice would be suffered by the applicants if leave to appeal were refused.  As to this last matter, the applicants will suffer no injustice if leave to appeal is refused as they have previously had their complaints examined in the Federal Magistrates Court, this Court and on application for special leave to the High Court.

6                     The application for leave to appeal is, therefore, refused with costs.

Associate:

Dated:         24 October 2008