SZBQW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 957

FEDERAL COURT OF AUSTRALIA

SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 957

NO ISSUE OF PRINCIPLE

SZBQW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 466 of 2004

BRANSON J
18 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 466 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBQW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	18 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of objection to competency be upheld.

2.The notice of appeal be dismissed as incompetent. 

3.The appellant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 466 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBQW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	18 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. At the time when this matter was listed for hearing the appellant was absent.  He was also absent when the matter was called for hearing approximately ten minutes later.  In my view the hearing should proceed.

2. I am satisfied that the notice of objection to competency in this matter should be upheld.  The judgment of Federal Magistrate Driver of 22 March 2004 was plainly interlocutory.  The appellant has not sought leave to appeal against that judgment.  On the last occasion he was granted leave to make an application for leave on the basis that were he to file that application within the time given to him it would be treated as having been made on the date of his notice of appeal.  However, that leave has not been exercised. 

3. It was also indicated to him on the last occasion that the notice of objection to competency would be heard and determined today if he did not exercise the leave to seek leave to appeal against the order of Federal Magistrate Driver. 

4. In the circumstances the notice of objection to competency is upheld and the notice of appeal dismissed as incompetent.  There will be an order that the purported appellant pay the costs of the respondent.

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

Associate:

Dated:            July 2004

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 May 2004
Date of Judgment:	18 May 2004