SZCXK v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 736

FEDERAL COURT OF AUSTRALIA

SZCXK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 736

SZCXK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 280 of 2005

ALLSOP J
3 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 of 2005

BETWEEN:	SZCXK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	3 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.To the extent necessary the application of the applicant made on 23 February 2005 for leave to appeal against the orders of the Federal Magistrate made on 4 February 2005 be treated as an application for an extension of time for the filing of an application for such leave to appeal and as an application for such leave to appeal.

2.The application so treated be allowed.

3.The costs of the application be costs in the appeal.

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 280 of 2005

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

JUDGE:	ALLSOP J
DATE:	3 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the learned Federal Magistrate on 4 February 2005 dismissed an application under s 39B of the Judiciary Act 1903 (Cth) under Rule 13.03(2)(b) of the Federal Magistrates Court Rules, that is, that the Court may make an order to end the proceedings if a party fails to comply with an order of the Court.

2. What is before me is not the appeal but an application for leave to appeal. 

3. The application originally filed can, without disrespect to the person who drafted it, be described as somewhat unhelpful in the administrative law sense.  This provoked the order made by a Registrar of the Court on 22 July 2004 in which the applicant was ordered to file an amended application giving complete particulars of each ground of review together with any evidence upon which he proposed to rely.  Those matters were to be done by 2 September 2004.  They were not done by 2 September 2004.

4. There was evidence before the Federal Magistrate that the applicant had had the advantage of some legal advice. The matter was brought on by letter by the respondent to have the application dismissed under Rule 13.03(2)(b). The applicant sought to file a document in Court on that application. The Federal Magistrate examined the document, described it in his reasons but refused to accept it for filing. The document is before me and I have marked it exhibit A in this application.

5. These are the reasons why I propose to grant leave. They are not intended to be exhaustive.  It seems to me a serious issue arises as to the correctness of the approach of the learned Federal Magistrate in the way he dealt with the amended application, in particular in the light of the fact that there was an assertion on page three of the document handed up that the Tribunal did not provide the applicant with an adequate opportunity to respond to the substance of information.  The solicitor or counsel who appeared on behalf of the Minister before the Federal Magistrate made the point that there was no identification of information.  That in a sense can readily be accepted from the language used.  An issue arises however as to whether properly instructed as to the caution with which interlocutory dismissal applications should be used, whether this can be seen as a course truly open to the Federal Magistrate in the light of an apparent assertion of inadequate time to examine material by the applicant.

6. It may well be that the appeal will fail.  I think however there is an arguable issue as to procedurally whether the appropriate course was adopted and so I propose to grant leave to appeal. 

7. The obtaining of the leave if the appeal is successful or the rejection of the leave if the appeal is unsuccessful will not prevent, one way or the other, the applicant filing a properly particularised application in the Federal Magistrates Court or the Federal Court in order to have his complaints as to the Tribunal's decision agitated.  It may be that if he has no claim that can be properly particularised any course that he adopts in this respect will ultimately be dealt with in further interlocutory applications based on the repetition of unparticularised claims.  This is one way of dealing with the matter.  Another way would be to hear the case and dispose of it but that is not my decision. 

8. For those reasons, the orders of the Court are:

   (1)To the extent necessary the application of the applicant made on 23 February 2005 for leave to appeal against the orders of the Federal Magistrate made on 4 February 2005 be treated as an application for an extension of time for the filing of an application for such leave to appeal and as an application for such leave to appeal.

   (2)       The application so treated be allowed.

   (3)       The costs of the application be costs in the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             6 June 2005

The applicant appeared in person with the assistance of a Bengali interpreter.
Counsel for the Respondent:	Mr A Carter (Slr)
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 June 2005
Date of Judgment:	3 June 2005