SZADX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 379 (3 April 2003)

Last Updated: 1 May 2003

FEDERAL COURT OF AUSTRALIA

SZADX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 379

SZADX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N177 of 2003

MADGWICK J

3 APRIL 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N177 OF 2003

BETWEEN:	SZADX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	3 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Insofar as the proceeding purports to be an application to appeal, or for leave to appeal, from the decision of Sackville J given on 14 March 2003 and refusing to stay the intended removal of the applicant from Australia by the respondent, the proceedings are incompetent.

2. Insofar as the proceeding seeks, or in connection therewith it is sought, or in connection with the principal proceeding before Sackville J it is sought, to stay the respondent's intended removal of the applicant from Australia today, the application is refused.

3. The applicant is to pay the respondent's costs as agreed or to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N177 OF 2003

BETWEEN:	SZADX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	3 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 I am considering, in circumstances of urgency, a notice of motion which in terms says that the applicant will:

"Move the court for orders -

(1) Appeal against the decision of Sackville J on 14 March 2003 refusing to grant a stay of deportation to prevent removal from Australia of the applicant until after his appeal hearing in the Full Federal Court on 12 May 2003 at 2.15pm.

(2) On the grounds that:

(3) The applicant was not represented by counsel and had no opportunity to present a case against deportation.

(4) That the issue of his gipsy ethnicity had been disclosed for the first time and this matter has not been adequately addressed."

2 The circumstances of urgency arise from the fact that the respondent Minister, by his departmental agents, intends to remove the applicant from Australia on an aeroplane leaving at 3.00 pm in order that he be returned to his native country or territory, Kosovo. The applicant has been assisted by Ms Hunt, a lay officer of the Jesuit Refugee Service.

3 The history of the matter is that the applicant applied for refugee status in 2001 on grounds which did not include a suggestion that as a gipsy he would be liable to persecution if returned to Kosovo. A delegate of the respondent refused his application for a visa and the applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"), which affirmed the decision of the Tribunal on 16 October 2001. The applicant then applied to this court seeking judicial review of the Tribunal's decision. His application was heard by Finkelstein J on 14 February 2002 who dismissed his application, whereupon he appealed to a Full Court which dismissed his appeal on 15 November 2002.

4 In February of this year the respondent Minister notified the applicant that he would be removed. He did not seek special leave to appeal to the High Court from the decision of the Full Court of this Court. Instead he applied to the Federal Magistrates Court for another judicial review of the Tribunal's decision and also for a stay of his removal. The respondent suspended the attempt to remove him pending a hearing by Federal Magistrate Driver. His Honour rejected the application for another review of the Tribunal's decision because of the doctrines of res judicata and/or Anshun estoppel.

5 The applicant then appealed to this court from the decision of the learned Magistrate. Arrangements were made to have his appeal heard by a single judge rather than by a Full Court of three judges and the matter came before Sackville J accordingly. The applicant made an application before Sackville J to stay his removal, and that was the subject of a short ex tempore judgment by Sackville J on 14 March 2003. Sackville J refused the application for a stay, concluding that the applicant had not demonstrated that there was any serious question to be tried on the appeal. His Honour observed that the purported second challenge to the decision of the Tribunal raised "no issue that is in any way different from the issues dealt with by Finkelstein J [and] the Full Court", nor was the applicant's position improved by the recent judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24.

6 The appeal from Driver FM is presently set down for hearing before Sackville J on 12 May 2003 and it is quite clear that, unless I stay the removal, the applicant will be in considerable difficulty in presenting that appeal.

7 Ms Hunt explained that the combination of the very limited resources of her organisation and a very large demand at the Detention Centre where the applicant has been

incarcerated, has meant that until recently she was not able to examine, even cursorily, the applicant's case. That only occurred within the last couple of days.

8 Nevertheless, nothing has been put before me which would indicate any greater legal justification for the applicant's appeal to this court from the decision of Driver FM than appeared to Sackville J. Thus I do not see that I can intervene where his Honour concluded that he could and should not.

9 The matter of the claim based on gipsy ethnicity is now raised for the first time. Even if the circumstances of that might possibly excite some sympathy for the applicant, that cannot, it seems to me, arguably support a conclusion that the Tribunal made any jurisdictional error. It is of course desirable that such a claim, however tardily raised by a person claiming refugee status who is still in Australia, should be considered, but I have no power at large to restrain the applicant's removal to enable that to be done.

10 In the circumstances, assuming that this matter should be seen as another application for a stay, I must refuse the stay.

11 Insofar as the notice of motion sought to institute an application for leave to appeal against the interlocutory judgment of Sackville J of 14 March 2003 the proceeding must be declared to be incompetent. Sackville J, though sitting alone, was exercising the appellate jurisdiction of this Court. No appeal can be lodged within this Court against the decision of his Honour. If that matter is to be appealed, it would have to be with special leave from the High Court.

12 In these circumstances there is nothing I can do to assist the applicant.

13 I think that the orders that I should make are the following:

(1) Insofar as the proceeding purports to be an application to appeal, or for leave to appeal, from the decision of Sackville J given on 14 March 2003 and refusing to stay the intended removal of the applicant from Australia by the respondent, the proceedings are incompetent.

(2) Insofar as the proceeding seeks, or in connection therewith it is sought, or in connection with the principal proceeding before Sackville J it is sought, to stay the respondent's intended removal of the applicant from Australia today, the application is refused.

(3) The applicant is to pay the respondent's costs as agreed or to be taxed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 29 April 2003

Applicant appeared in person, with assistance by Judy Hunt (Jesuit Refugee Service)

Counsel for the Respondent:	Mr Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 April 2003
Date of Judgment:	3 April 2003