FEDERAL COURT OF AUSTRALIA

Swee Yen Tay v Migration Review Tribunal (No 2) [2009] FCA 591

SWEE YEN TAY v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

SAD 182 of 2008

BESANKO J

2 JUNE 2009

ADELAIDE

THE COURT ORDERS THAT:

1.                  The proceeding be dismissed as against each respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.                  The applicant pay the second respondent’s costs of the proceeding, including the costs of the notice of motion dated 25 May 2009.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

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 (4^th 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.

Associate:

Dated:         2 June 2009