SZACN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1330

FEDERAL COURT OF AUSTRALIA

SZACN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1330

MIGRATION – application for leave to appeal from Federal Magistrates Court – no point of principle

SZACN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1548 OF 2005

TAMBERLIN J
SYDNEY
19 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1548 OF 2005

BETWEEN:	SZACN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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 1548 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	19 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Federal Magistrate Barnes delivered on 27 July 2005. 

2. As pointed out by Ms Nanson for the Minister, it is necessary for the applicant to obtain an extension of time for the filing of a Notice of Appeal.  The application for leave to appeal is not out of time by a very substantial period and, in the absence of any prejudice, I would otherwise be disposed to grant an application for an extension of time.

3. The real difficulty with the applicant’s case is that nothing has been shown in the draft Notice of Appeal, in the Affidavit referred to in the Notice of Appeal, or in the oral submissions made to me this morning by the applicant which would provide any basis for reaching a conclusion that the Magistrate or the Tribunal had erred in law or principle in considering this application.

4. The application for leave to appeal filed on 31 August 2005 refers to an annexed affidavit.  The annexed affidavit sets out a detailed history of the matter and states that the Magistrate did not consider the application and that the applicant did not get an opportunity to file his written submissions.  Nothing has been said to me today in relation to the lack of an opportunity before the Magistrate to file written submissions.  A perusal of the decision of the Magistrate indicates careful attention was paid to the application and it cannot be said that there was no consideration of the application.

5. In order to succeed on the application, it is necessary for the applicant to show that there is an arguable case, or that there is some substance in a contention that there has been an error below, and that injustice would be caused if leave were not granted.

6. In this case, because no arguable ground has been raised and the only matters referred to in oral submissions by the applicant were matters of fact that seek to re-canvass the conclusions of the Tribunal, I consider that the application in this matter should be dismissed with costs.  I note that the matter has had a long procedural history and the applicant has had a number of occasions in which he has had an opportunity to have his case fully ventilated.

7. Therefore, I dismiss the appeal with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            28 September 2005

The Applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 September 2005
Date of Judgment:	19 September 2005