SZBEI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1833

FEDERAL COURT OF AUSTRALIA

SZBEI v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1833

SZBEI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1967 OF 2005

EDMONDS J
5 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1967 OF 2005

BETWEEN:	SZBEI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	5 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs fixed in the sum of $1,200.

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	NSD 1967 OF 2005

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

JUDGE:	EDMONDS J
DATE:	5 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. By application filed on 17 October 2005 the applicant seeks leave to appeal against interlocutory orders of Federal Magistrate Smith made on 10 October 2005.  The Federal Magistrate dismissed an application for judicial review filed in the Federal Magistrates Court on 20 July 2005 as abuse of the Court’s process pursuant to rule 13.10(c) of the Federal Magistrates Rules. 

2. This matter has a fairly long history.  The delegate’s decision was made on 11 January 2002.  An application was lodged with the Refugee Review Tribunal (‘the Tribunal’) on 8 February 2002 which handed down its decision on 29 July 2003.  An application for judicial review was then made to the Federal Magistrates Court on 12 August 2003 and Federal Magistrate Mowbray dismissed the application after a final hearing on 7 March 2005.  An appeal was then lodged in this Court on 21 March 2005 and Hely J dismissed the appeal with costs on 16 June 2005.  On 12 July 2005 the applicant lodged an application for a review of the delegate’s decision.  On 10 October 2005 Federal Magistrate Smith dismissed the application as an abuse of process.  The applicant now seeks leave to appeal from the Federal Magistrate’s decision. 

3. The draft notice of appeal pleads, without particulars and without any supporting evidence, that the Federal Magistrates Court erred in law, breached the rules of procedural fairness and failed to determine that the delegate ‘made jurisdictional error in it’s notification’.  The affidavit filed in support of the application merely states that the applicant was sick and was unable to attend the hearing and that his matter was dismissed in his absence.

4. At the hearing of the leave application today, there has been no appearance on behalf of the applicant and the Court has received no communication to explain that non-appearance.  The papers do not suggest that there is any arguable basis on which an appeal might succeed.  I am therefore compelled to come to the conclusion that the leave application should, in all these circumstances, be dismissed.

5. I will order that the applicant pay the respondent’s costs fixed in the sum of $1,200.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             December 2005

Solicitor for the Applicant:	No appearance by the applicant
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 December 2005
Date of Judgment:	5 December 2005