Alshams v Minister for Immigration and Multicultural Affairs

[2001] FCA 870

FEDERAL COURT OF AUSTRALIA

Alshams v Minister for Immigration & Multicultural Affairs [2001] FCA 870

MAQSOOD ALSHAMS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 103 OF 2001

LEE, MARSHALL & KATZ JJ
SYDNEY
23 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 103 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MAQSOOD ALSHAMS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	LEE, MARSHALL, KATZ JJ
DATE OF ORDER:	23 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with no order as to costs.

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	N 103 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MAQSOOD ALSHAMS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	LEE, MARSHALL, KATZ JJ
DATE:	23 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from an order of a judge of this court, Wilcox J, which dismissed an application for review, made by Mr Alshams in respect of a decision made under the Financial Management and Accountability Act 1997 (Cth).  The dismissal of the application for review came about when the matter was called on for substantive hearing on 31 January 2001, when Mr Alshams did not appear to present his case.  The respondent moved for dismissal of the application. His Honour acceded to the motion and made an order accordingly which has now been extracted as an order of the Court.

2. No step was taken by Mr Alshams to have his Honour review that decision pursuant to the provisions under the Federal Court Rules (“the Rules”) and instead he has taken an appeal directly to the Full Court.  We have heard the submissions by Mr Alshams from which it appears that he may have material that he could have put before Wilcox J which may have caused his Honour to review, and, in fact, set aside the order he had made and to allow the application for review to continue before the Court.

3. In the circumstances, which involve the fact that Mr Alshams has not been represented and has no legal training, and that he has not been advised until today that the Rules provide for such a review, we are of the view that the appeal should be dismissed and that the Court make no order in respect of the costs of the appeal.

4. If Mr Alshams wishes to take this matter any further, the course he should follow is to prepare evidence to put before Wilcox J of the circumstances that caused him not to appear on 31 January 2001 and to bring such material as he can muster he considers sets out reasons why his Honour may set aside the order that he has made dismissing the application.

5. That will involve, of course, Mr Alshams having affidavits prepared whether his own or affidavits by others who have the relevant knowledge of circumstances, which may include the matters relating to the transmission of facsimile material and so forth.  It may require an affidavit from a medical practitioner. It will require an application to the Court supported by evidence requesting Wilcox J to set aside the order.  The application pursuant to the Rules requires a notice of motion supported by affidavit.

6. We note for the record that such a course will not be met by objection by the respondent that it is not a course open to Mr Alshams under the Rules or that he has already elected to take some other action. That being the circumstance, we will make the orders as indicated, namely, that the appeal be dismissed and there be no order as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Marshall & Katz.

Associate:

Dated:             

Appellant appeared in person.
Counsel for the Respondent:	R T Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 May 2001
Date of Judgment:	23 May 2001