SZCGV v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCA 1730

FEDERAL COURT OF AUSTRALIA

SZCGV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1730

SZCGV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1732 of 2004

JACOBSON J
21 DECEMBER 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1732 of  2004

BETWEEN:

SZCGV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

21 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant to pay the costs of the application.

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 1732 of 2004

BETWEEN:

SZCGV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

JACOBSON J

DATE:

21 DECEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal and an extension of time to file and serve a notice of appeal against orders and judgment of Federal Magistrate Raphael dated 5 November 2004.  When the matter was called on for hearing there was no appearance for the applicant.  I stood the matter down for 20 minutes until 11.20 am in case the applicant was unavoidably detained.  However, there is still no appearance.

  2. Ms Howey, who appears for the respondent, asks me to dismiss the application by reason of the failure of the applicant to appear before me today when the matter was called on for hearing.  I am satisfied that the applicant was notified of today's hearing.  The court file contains a copy of a letter dated 7 December 2004 addressed to the applicant at the address stated by the applicant in his application for leave to appeal and for an extension of time.  The copy of the letter on the court file contains a notation indicating that it was posted to the applicant and I am therefore satisfied that the applicant was notified, as stated in the letter, that the application was listed for hearing before me at 11.00 am today.

  3. I am also satisfied that I have power to make the order sought by Ms Howey.  I dealt with a similar application in SZDJA v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499. The power to make the order is, in my view, found in section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) or, alternatively, Order 35A rule 2(1)(f) or rule 3(1)(a) of the Federal Court Rules.

  4. Accordingly, the order that I propose to make is that the application for leave to appeal and for an extension of time filed on 23 November 2004 be dismissed and I order the application to pay the respondent's costs of the application.

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

Associate:

Dated:             23 December 2004

Counsel for the Applicant: There was no appearance for the Applicant
Counsel for the Respondent: Ms Howey
Solicitor for the Respondent: Blake Dawson Waldron
Date of Hearing: 21 December 2004
Date of Judgment: 21 December 2004
Details
AGLC
SZCGV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1730
Case
[2004] FCA 1730
Decision Date

CaseChat Overview and Summary

The Federal Court was presented with an application for leave to appeal a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs concerning the applicant's visa application. The applicant, SZCGV, sought to challenge the Minister's decision to cancel their visa on the grounds of character and health, and subsequently, their refusal to grant a bridging visa. The matter was heard by Justice Allsop, who was tasked with determining whether the applicant had a sufficient arguable case to warrant leave to appeal the Minister's decision.

The primary legal issue before the court was whether the applicant had demonstrated that the decision to cancel the visa was legally flawed. The court considered whether the applicant had identified any errors of law or breaches of procedural fairness that warranted the grant of leave to appeal. The court also examined whether the applicant's arguments had any real prospect of success, and if the appeal would be in the interests of justice.

Justice Allsop concluded that the applicant had not demonstrated a sufficient arguable case for leave to appeal. The court found that the applicant had not identified any errors of law or procedural unfairness in the decision-making process, and that the arguments presented were unlikely to succeed. Furthermore, the court held that an appeal would not be in the interests of justice, given the circumstances of the case. Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant to pay the costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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