NBED v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1741

FEDERAL COURT OF AUSTRALIA

NBED v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1741

NBED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1651 of 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1651 OF 2004

BETWEEN:	NBED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.
2. The applicant pay the respondent’s 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	NSD 1651 OF 2004

BETWEEN:	NBED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an order made by a Federal Magistrate on 5 November 2004 that the application be dismissed pursuant to Rule 13.03(2)(b) and Rule 13.10(a) of the Federal Magistrates Court Rules, and that the applicant pay the respondent's costs. 

2. The applicant has filed a draft Notice of Appeal, which states as the purported grounds:

   “2. The matter was dismissed despite the fact that he filed an “Amended Application” on 19/06/04 as per Order 2 of Short Minutes of Orders.

   3. I am seeking independent legal advice now and I wish to have [a] proper opportunity to present the case more appropriate[ly] this time.”

3. The Minister submits that the application is misconceived because in fact the Federal Magistrate disposed of the matter by way of summary dismissal and had regard to the Amended Application, notwithstanding the fact that there was some dispute as to whether it had been filed, and that the document had not been noted on the Court file.  Nevertheless, the Federal Magistrate had regard to the substance of the matters raised in the Amended Application and formed the view that no reasonable cause of action was disclosed in relation to the proceeding or claim for relief. 

4. I have had regard to the form of the Amended Application upon which the applicant seeks to rely as a basis for claiming that there was a failure of procedural fairness.  I am satisfied that the Federal Magistrate had regard to the Amended Application, and having considered it I have formed the firm view that it does not disclose any ground of review, and that therefore no ground of appeal has been established.

5. For these reasons I dismiss the application for leave to appeal, with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            16 December 2004

The Applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004