SZAEW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 115

FEDERAL COURT OF AUSTRALIA

SZAEW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 115

SZAEW v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

N 1974 of 2003

LINDGREN J
17 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1974 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAEW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	17 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellant 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	N 1974 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAEW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant purports to appeal from a judgment of Driver FM given on 28 October 2003.  The notice of appeal, which was filed on 17 November 2003, states one ground as follows:

   ‘I am a refugee and I am not consent [sic] with the decision made by the RRT in my case.  I would like the RRT’s decision in my case to be reviewed.’

2. Under ‘Order Sought’, the notice of appeal states:

   ‘The RRT decision involved an error of law whether or not the error appears on the record at the time of decision.  I need a fair justice in relation to my appeal.’

3. The proceeding was returnable before me on 18 December 2003 when the appellant appeared.  It was stood over to last Tuesday, 10 February 2004, for directions.  The appellant did not appear.  On that date, with leave, the respondent filed a notice of motion seeking an order that the appeal be dismissed as incompetent.  The motion was made returnable today for hearing and the proceeding generally was stood over to today.

4. In the meanwhile the Chief Justice made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) that the appeal be heard by a single judge.

5. This morning the appellant has appeared, aided by an interpreter.

6. The appeal is incompetent because the Federal Magistrate’s decision was only interlocutory.  The affidavit read in support of the motion shows that:

   ·    the application was listed for hearing before the Federal Magistrate on 28 October 2003;

   ·    the appellant failed to appear;

   ·    the application was dismissed on account of his non-appearance pursuant to O 32 r 2(1)(c) of the Federal Court Rules (see Federal Magistrates Court Rules 2001, r 1.05(2)) and

   ·    he was ordered to pay the respondent’s costs fixed at $2500.

7. Section 24 of the Act gives this Court jurisdiction to hear and determine the appeals identified in s 24(1). Paragraph (d) of s 24(1) identifies, relevantly, appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than certain specified laws of the Commonwealth not presently relevant. Importantly, subsection (1A) of s 24 provides that an appeal shall not be brought from a judgment referred to subs(1) that is an interlocutory judgment, unless the Court or a judge gives leave to appeal.

8. The order of the Federal Magistrates Court dismissing the present appellant’s application before it for his non-appearance was interlocutory: see Minogue v Williams (2000) 60 ALD 366; NAOU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 406.

9. The appellant has not applied for leave to appeal.  Treating his present notice of appeal as such an application, I would refuse it.  On an appeal, this Court should have the benefit of reasons at first instance.  The Federal Magistrate has not had occasion to give reasons addressing the decision of the RRT.  The appropriate procedure in a case such as this is for the appellant to apply to the Federal Magistrates Court for an order setting aside the order of dismissal made in his absence:  see Federal Magistrates Court Rules 2001, r 1.05(3)(b), Federal Court Rules O 35 r 7(2)(a).  I say nothing as to the prospects of success of such an application.

10. For the above reasons, the appeal should be dismissed as incompetent with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:        

Dated:             26 February 2004

The Appellant appeared in person
Solicitor for the Respondent:	Ms S Burnett of Clayton Utz
Date of Hearing:	17 February 2004
Date of Judgment:	17 February 2004