SZCEQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1397

FEDERAL COURT OF AUSTRALIA

SZCEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1397

SZCEQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1315 of 2005

MADGWICK J
15 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1315 OF 2005

BETWEEN:

SZCEQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

JUSTICE MADGWICK

DATE OF ORDER:

15 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed

2.The applicant pay the first respondent’s costs, assessed in the sum of $700.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1315 OF 2005

BETWEEN:

SZCEQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	15 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Nicholls on 15 July 2005 (see SZCEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1141). That judgment concerned an application by the applicant to set aside, pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth), orders made by his Honour on 21 September 2004 dismissing, pursuant to rule 13.03A(c) of those rules, the applicant's application for judicial review of an adverse decision of the Refugee Review Tribunal (‘Tribunal’) which had been given on 14 November 2003. The applicant's then solicitor, Mr Khan, on that day sought leave to withdraw from the matter, having served on the respondent and, according to the learned magistrate, ‘attempted to serve on the applicant, without success, a Notice of Ceasing to Act on 15 September 2004’, and I gather, having taken other steps to contact his erstwhile client, the applicant.

2. When the matter came back on before his Honour, the applicant was legally represented, and an affidavit sworn by him apparently suggested that the reason he had not appeared at the hearing fixed for 21 September 2004 was that he believed that he had legal representation and there was no necessity for him personally to attend the court.

3. It appeared that the respondent had sent a letter to the applicant's address on 17 September 2004, among other things confirming the time, date and place of the hearing fixed for 21 September 2004.  I do not understand it to have been ever suggested that that address was not in fact the appropriate and suitable address to find the applicant.

4. His Honour said that he was ‘not persuaded by the explanation that the applicant has given by way of evidence’ and continued shortly afterwards (at [10]-[11]):

   ‘…clearly we have a situation where an applicant knows that a matter has been set down for hearing, a matter that is of critical and vital importance to him.

   …

   The applicant knew when the hearing of his matter was on and has failed to persuade the Court by the explanation given by way of evidence that he does not, at least, bear some responsibility here.’

5. The learned Federal Magistrate concluded that he was not satisfied that the applicant had a ‘reasonable excuse’ for not attending the hearing on 21 September 2004, let alone an explanation that would satisfy a test of ‘exceptional circumstances’ which had been urged upon him by the respondent.  Alternatively, his Honour thought that to set aside the original orders would be futile because there was no reasonable prospect of success of any of the grounds contained in his original application to the Court below.  His Honour gave reasons for that opinion.  In short, his Honour felt that there would be no injustice done by refusing to reopen the matter.

6. Before this Court, the draft Notice of Appeal, which it appears the applicant would wish to file, gives no particular that would indicate that he has a case for appealing against the decision of the learned Magistrate not to reopen the case.  As I said, he was legally represented in relation to the reopening application before Nicholls FM.  The affidavit in support of his application for leave to appeal seems to indicate that he had a problem while living in India, his native country, and that ‘I am expecting that Federal Court will make favourable decision in my appeal relation to my protection claim in India’ (solecisms preserved).

7. There is no doubt that the decision of the learned Federal Magistrate was interlocutory and, accordingly, obtaining leave to appeal depends on whether, in all the circumstances, the decision sought to be appealed is attended with sufficient doubt as to warrant its being reconsidered by a Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. 

8. No error of fact or principle suggests itself to me from a reading of his Honour's judgment and, accordingly, I do not think the decision is attendant with sufficient doubt to warrant leave to appeal.  Secondly, for the reasons given by his Honour, it also seems to me that the applicant has failed to show that substantial injustice would result if leave were refused, supposing the decision to be wrong. 

9. The application for leave to appeal will be dismissed with costs, assessed in the sum of $700.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             30 September 2005

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 September 2005
Date of Judgment:	15 September 2005