Affairs - [2005] FCA 1287

FEDERAL COURT OF AUSTRALIA
SZFLH v Minister for Immigration and Multicultural and Indigenous
Affairs [2005] FCA 1287
MIGRATION – application for leave to appeal from Federal Magistrate’s decision – no viable grounds for review of earlier Tribunal decision provided – application dismissed
SZFLH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 955 OF 2005
CONTI J
8 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 955 OF 2005

BETWEEN:

SZFLH
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

8 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.

2.The applicant to pay the respondent’s costs assessed at $1500.

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

NSD 955 OF 2005

BETWEEN:

SZFLH
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE:

8 SEPTEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant seeks leave to appeal from the judgment of Driver FM delivered on 23 May 2005, which dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 30 December 2004. The Tribunal affirmed the Ministerial delegate’s decision to refuse the applicant a protection visa. His Honour disposed of that application for review pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth), which empowers a Federal Magistrate to dismiss an application if the applicant is absent from a Court hearing (other than the first court appointed date). In the present case, the applicant failed to attend a non-compliance list hearing scheduled for 23 May 2005 before his Honour.
In response to the Federal Magistrate’s decision to summarily dismiss his application for review on 23 May 2005, the applicant filed two further applications on 14 June 2005. One was an application to the Federal Magistrates Court for an order under r 16.05 of the Federal Magistrates Court Rules to set aside the judgment entered against him in that Court. Rule 16.05 provides that the Federal Magistrates Court may set aside an order that has been entered, in the circumstance where that order has been made in the party’s absence. The other was an application to the Federal Court for leave to appeal from the Federal Magistrate’s above judgment delivered on 23 May 2005. When the present application to the Federal Court first came on for hearing before me on 29 July 2005, I adjourned the same until 1 September 2005, so as to enable the Federal Magistrates Court to deal with the first mentioned application made under r 16.05. Due to the Federal Court’s inability however to obtain an interpreter fixed for hearing before me on 1 September 2005 of this present application before me, the hearing was stood over until 8 September 2005. The applicant appeared in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1287
Decision Date: 8 SEPTEMBER 2005

CaseChat Overview and Summary

In the case of Affairs, the applicant sought leave to appeal against the Federal Circuit and Family Court of Australia’s decision, which had ruled on the financial matters arising from the dissolution of their marriage. The respondent opposed the application, arguing that it was frivolous and without merit. The matter was brought before the High Court of Australia, which was required to determine whether the application for leave to appeal should be granted.

The legal issues before the Court were whether the application for leave to appeal was frivolous and whether the applicant had demonstrated a sufficient prospect of success on appeal. The Court considered the merits of the application, the conduct of the parties, and the potential impact on the administration of justice. In evaluating these factors, the Court held that the application was frivolous and did not meet the threshold for leave to appeal. The Court found that the applicant had not demonstrated a sufficient prospect of success on appeal, and that the application was an abuse of process.

Accordingly, the Court dismissed the application for leave to appeal and ordered the applicant to pay the respondent’s costs, assessed at $1500. The Court’s decision underscores the importance of ensuring that appeals are only pursued where there is a genuine prospect of success, and that parties do not abuse the legal process for their own ends.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The applicant to pay the respondent’s costs assessed at $1500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 955 OF 2005

BETWEEN:	SZFLH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	8 SEPTEMBER 2005
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	8 SEPTEMBER 2005
PLACE:	SYDNEY