SZBBO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 791

FEDERAL COURT OF AUSTRALIA

SZBBO v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 791

SZBBO V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 661 of 2004

WHITLAM J
15 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 661 OF 2004

BETWEEN:	SZBBO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	15 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application is refused 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	N 661 OF 2004

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

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

REASONS FOR JUDGMENT

1. This application purports to be for an extension of time to institute an appeal from a judgment of the Federal Magistrates Court given on 5 December 2003.  On that day the Federal Magistrates Court ordered the applicant to pay the respondent’s costs of a proceeding which stood dismissed pursuant to orders made on 8 October 2003.

2. The application before the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal made on 6 February 2003 affirming the decision of a delegate of the respondent to refuse the grant of protection visa.  That application was commenced on 1 August 2003.  As the applicant was in detention the matter was given an early final hearing date and fixed for hearing on 8 October 2003.  On that day the applicant was represented by a solicitor who applied to have the matter adjourned. The Federal Magistrate granted the adjournment on terms that the applicant file an amended application by 19 November 2003 and that, in the event of default, the proceeding would stand dismissed.  That order was made because the application on foot contained no plausible grounds which would allow a challenge on grounds of jurisdictional error to the decision of the Refugee Review Tribunal which was a privative clause decision under the Migration Act 1958.  No amended application was filed.  The proceeding accordingly stood dismissed when the Federal Magistrate made the order for costs against the applicant.

3. The present application is therefore misconceived inasmuch as there is no right to appeal against an order for costs of an interlocutory order.  Nonetheless, Mr Cramer, who appears for the respondent, accepts that I as a single Judge would have power to give leave to appeal against such an order.  But he says that no basis for such leave has been made, and I think that is right.  The draft notice of appeal contains no grounds indicating any possible error on the part of the Court.  Indeed, I think even the applicant, who suffers from the misfortune of appearing for himself and having to conduct his case in a language which is not his native tongue, acknowledges that he is unable to identify any error on the part of the Federal Magistrate.  Were he able to have the application restored and put back on foot, no jurisdictional error on the part of the Tribunal could be suggested.

4. The applicant says that he has been either in detention or in prison for roughly 18 months, that his case was poorly presented to the Tribunal, and that he would be able to get much more material now to put before the Tribunal if he were in a position to have it reconsider the merits of his application for a protection visa.  Notwithstanding all that, there is nothing in the material before me which indicates any possible basis on which there would be any utility in extending the time to permit an appeal, or in giving leave to appeal against either or both of the orders made by the Federal Magistrates Court.  Accordingly, the application is refused with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            15 June 2004

The applicant appeared in person

Solicitor for the Respondent:	Mr Benjamin Cramer from Blake Dawson Waldron
Date of Hearing:	15 June 2004
Date of Judgment:	15 June 2004