SZARD v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1236

FEDERAL COURT OF AUSTRALIA

SZARD v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1236

SZARD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1155 of 2004

WHITLAM J
15 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1155 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZARD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	15 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed as incompetent.

2.The appellant is to pay the respondent’s costs of and incidental to the appeal fixed in the sum of $2,200.

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	N1155 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WHITLAM J
DATE:	15 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding purports to be an appeal from a judgment of the Federal Magistrates Court given on 15 July 2004 summarily dismissing an application to that Court in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 October 2003.  The respondent in this proceeding has filed a notice of objection to the competency of the appeal.  The basis of the objection is that the judgment of the Federal Magistrates Court was an interlocutory judgment.  The appellant has not sought leave to appeal but the purported notice of appeal was filed within the time such an application could have been made.  At the first directions hearing the appellant was given leave to make an application for leave to appeal.  No such application was made.

2. The appellant has the misfortune to be acting for himself in this appeal and, accordingly, notwithstanding the absence of a formal application for leave to appeal, I am prepared to consider the matter on the basis that leave should be granted if there are any prospects of an appeal being successful. I should say at the outset that the judgment of the Federal Magistrates Court was undoubtedly interlocutory. The application to that Court was dismissed because it was filed outside the 28 day time limit prescribed by s 477(1A)(a) of the Migration Act 1958. (Indeed, although he may not have quite appreciated the importance of what he was doing, the appellant conceded that the appeal was incompetent.) The purported notice of appeal asserts baldly that the Federal Magistrate failed to find that the Tribunal “made error of law, jurisdictional error and procedural fairness in deciding my case”. However, the reasons of the Federal Magistrate show clearly that there was no jurisdictional error. Further, the appellant frankly conceded that he was unable to go beyond the mere assertion in his notice of appeal because the allegation in that notice had been made on the advice of someone who is no longer able to assist him. The notice of appeal also alleges that the decision of the Tribunal was in breach of ss 418(3) and 424A(1) of the Migration Act 1958.  That allegation, to the extent that it was agitated in the Court below, was correctly dealt with by the Federal Magistrate. 

3. An appeal would be utterly hopeless, and there would be no utility in granting leave to appeal.  Accordingly the appeal will be dismissed as incompetent.  The appellant must pay the respondent’s costs.

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

Associate:

Dated:            15 September 2004

The appellant appeared in person

Solicitor for the respondent:	Mr R J White from Sparke Helmore
Date of hearing:	15 September 2004
Date of judgment:	15 September 2004