SZARC v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 931

FEDERAL COURT OF AUSTRALIA

SZARC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 931

SZARC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N375 of 2004

MADGWICK J
28 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N375 of 2004

BETWEEN:	SZARC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	28 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent’s objection to the competence of the appeal is upheld.

2.The applicant’s proceedings in this Court will be dismissed. 

3.The applicant is to pay the costs of the respondent assessed in the sum of $3,000. 

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	N375 OF 2004

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

JUDGE:	MADGWICK J
DATE:	28 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. On 19 March 2004, the would-be appellant filed a purported Notice of Appeal from a judgment of the Federal Magistrates Court given by Barnes FM given on 1 March 2004.  The applicant was unsuccessful in his claims to be a refugee and a decision adverse to him was given by the Refugee Review Tribunal (‘the Tribunal’) on 7 January 2003.  The applicant did not seek review by the Federal Magistrates Court until 26 May 2003.  The matter before the court at first instance was whether a notice of objection to competency of the appeal filed by the respondent Minister should be upheld.  The Minister’s point was that the application for review had been made more than 28 days after notification of the Tribunal decision.

2. Section 477(1A) of the Migration Act (1958) (Cth) (‘the Act’) provided at the relevant time that an application to the Federal Magistrates Court under s 483A for a constitutional writ or an injunction or declaration in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court was not excluded by s 476, must be made within 28 days of the notification of the decision.  The decision of the Tribunal would be caught by s 477(1A), subject to any constitutional consideration.

3. With a view to exploring constitutional considerations, the learned Federal Magistrate properly considered whether there was any jurisdictional error on the part of the Tribunal and concluded, for reasons given, with which I respectfully agree, that there was no such error.  Accordingly, her Honour upheld the objection to competency based on the lateness of filing of the application. 

4. In this Court the respondent filed a notice of objection to the competency of the appeal from the Federal Magistrates Court upon the basis that her Honour’s judgment was interlocutory and the applicant would need leave to appeal but no application for leave to appeal had been made in time or at all.  It is convenient to treat the proceedings before the Court as an application for leave to extend time within which to file an application for leave to appeal and, if that leave should be granted, as an application for such leave. 

5. Not to put too fine a point on it, the applicant’s legal case was quite hopeless before the learned Federal Magistrate and is quite hopeless here.  The applicant filed written submissions before the learned Federal Magistrate which appear to have had little relation to the case before her and that performance has been repeated spectacularly in this Court.  The Notice of Appeal had little to do with her Honour’s judgment and, as far as I can see, the written submissions have nothing at all to do with it.  They are an amazing example of what electronic cutting and pasting can do.  The applicant says that a named friend volunteered the information for him.  It is unnecessary to say any more than that the proceedings in this Court are quite without merit and no relief, as to the substance of the matter, even if regularly sought and if mere irregularities were excused, should be granted to the applicant.

6. The respondent’s objection to the competence of the appeal is upheld.  The applicant’s proceedings in this Court will be dismissed. 

7. The applicant is to pay the costs of the respondent assessed in the sum of $3,000. 

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

Associate:

Dated:            28 June 2004

The applicant appeared in person.
Counsel for the Respondent:	Mr Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 June 2004
Date of Judgment:	28 June 2004