SZAAD v Minister for Immigration and Citizenship

[2007] FCA 215

FEDERAL COURT OF AUSTRALIA

SZAAD v Minister for Immigration and Citizenship [2007] FCA 215

SZAAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1926 OF 2006

MOORE J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1926 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAAD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant pay the respondent's costs fixed in the sum of $750.

3.The name of the respondent be amended to the 'Minister for Immigration and Citizenship'.

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 1926 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAAD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against the judgment of the Federal Magistrate of 7 September 2006 refusing to set aside orders of 5 June 2006 dismissing an application for judicial review because the applicant had not appeared: see SZAAD v Minister for Immigration [2006] FMCA 1337. The applicant had sought judicial review of a decision of a delegate of the first respondent of 1 April 2001 not to grant the applicant a protection visa. There has been no appearance by the applicant this morning. It is plain the applicant is aware that the matter was listed for hearing today as the applicant sent a facsimile to the Court yesterday enclosing a medical certificate which states that the applicant is unfit to attend work between 26 February and 5 February 2007 (which should probably be read 5 March 2007) due to "severe backache, sciatica". It is not apparent to me from this material that the applicant was unable to attend the hearing even if to do so occasioned him a measure of physical discomfort.

2. I propose to dismiss the application having regard to the non-appearance of the applicant, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I should add however that the decision of the Federal Magistrate appears to me to have been correct. In substance the applicant was seeking to challenge a decision of the delegate of the Minister to refuse the applicant a protection visa, a matter in respect of which the Federal Magistrates Court had no jurisdiction. I should further add that that application to the Federal Magistrates Court was made against a background of extensive litigation in the Federal Magistrates Court, this Court and the High Court concerning the decision of the Refugee Review Tribunal affirming the decision of the delegate: see SZAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 462, SZAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 803. The earlier proceedings in the Federal Magistrates Court were dismissed by consent on 23 January 2003.

3. I order that the application be dismissed and the applicant pay the first respondent’s costs. I order that those costs be fixed in the sum of $750.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 March 2007

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007