SZCQH v Minister for Immigration Multicultural and Indigenous Affairs

[2005] FCA 484

FEDERAL COURT OF AUSTRALIA

SZCQH v Minister for Immigration Multicultural & Indigenous Affairs

[2005] FCA 484

SZCQH v MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1933 of 2004

WHITLAM J
12 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1933 OF 2004

BETWEEN:	SZCQH APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	12 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal 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	NSD1933 OF 2004

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

JUDGE:	WHITLAM J
DATE:	12 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 3 December 2004. On that day Nicholls FM made an order under r 13.03 of the Federal Magistrates Court Rules dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) made on 28 January 2004 refusing to grant the applicant a protection visa.

2. The proceeding in the Federal Magistrates Court was commenced on 5 February 2004.  The initiating process contained no grounds alleging jurisdictional error on the part of the RRT.  Accordingly, at a directions hearing on 3 June 2004, an order was made by consent requiring the applicant to file an amended application by 28 July 2004.  A barrister was assigned to advise the applicant under the RRT Legal Advice Scheme.  She was unable to contact the applicant at his address for service, and wrote to the respondent's solicitors seeking an extension of time for filing an amended application until 25 August 2004.  The respondent's solicitors agreed to an extension of time until 14 September 2004.  They wrote to the applicant on 1 September 2004 indicating that, if such an application were not filed within the extended period, the respondent would apply to have the proceeding dismissed for failure to comply with the earlier order.

3. The assigned barrister was never able to contact the applicant, and the respondent's solicitors arranged to have the proceeding placed in the non-compliance list on 7 December 2004.  The solicitors wrote to the applicant on 27 October 2004, indicating that if he remained in default on that date, then the respondent would apply to have the proceeding dismissed.  The proceeding was subsequently relisted for 3 December 2004, and on 11 November 2004 the respondent's solicitors wrote to the applicant, informing him of the new hearing date and confirming their instructions to have the matter dismissed if he remained in default.

4. On 2 December 2004 the applicant filed an amended application.  However, at the hearing on 3 December 2004 the respondent pressed her foreshadowed application, to which Nicholls FM acceded.  Having found that the applicant was unable satisfactorily to explain his default, his Honour considered the grounds stated in the amended application and concluded that they did not contain an allegation amounting to jurisdictional error on the part of the RRT.  His Honour gave reasons for judgment ex tempore.  A certified copy of those reasons was produced on 9 March 2005. 

5. The affidavit in support of the present application was made on 22 December 2004.  It annexes a draft notice of appeal.  Neither that notice nor the affidavit addressed the reasons given by Nicholls FM for the order he made.  The test laid down in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 has not been met. The applicant has not been able to show any arguable case that the RRT’s decision might be quashed for jurisdictional error.

6. The application for leave to appeal is refused with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             12 April 2005

The applicant appeared in person.

Mr P D Reynolds, solicitor, from Clayton Utz appeared for the respondent.

Date of hearing:	12 April 2005
Date of judgment:	12 April 2005