SZCYW v Minister for Immigration and Citizenship

[2007] FCA 451

FEDERAL COURT OF AUSTRALIA

SZCYW v Minister for Immigration and Citizenship [2007] FCA 451

SZCYW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 225 OF 2007

MOORE J
27 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 225 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCYW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an adjournment be refused.

2.The application for an extension of time be dismissed.

3.Leave to appeal be refused if leave be necessary.

4.The appeal otherwise be dismissed.

5.The applicant pay the first respondent's costs fixed in the sum of $1000.

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 225 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCYW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal in respect of the decision of a Federal Magistrate of 25 November 2004: see SZCYW v Minister for Immigration [2004] FMCA 878. The better view is probably that it should be an application for an extension of time to file and serve an application for leave to appeal that decision, but nothing turns on that. The Federal Magistrate dismissed an application for judicial review of a second decision of the Refugee Review Tribunal of 27 May 1999 as an abuse of process. Her Honour also dismissed as incompetent an application for judicial review of the first decision of the Tribunal of 13 July 1998, that Tribunal decision having been earlier set aside by consent by the Federal Court.

2. The proceedings in the Federal Magistrates Court were commenced on 11 March 2004.  An application for an order of review of the second Tribunal decision had previously been dismissed by the Federal Court, an appeal from which decision was dismissed by the Full Court.  In those circumstances, it is not apparent to me that the Federal Magistrate erred in concluding that the proceedings were an abuse of process.  Accordingly, any appeal against the Federal Magistrate’s decision is deemed to fail.  The application for an extension of time is dismissed and if necessary, leave is refused and the appeal is otherwise dismissed.

3. In so concluding, I am refusing an application for an adjournment which was effectively made by the applicant today.  She stated that she needed more time to obtain legal assistance and legal advice for the proceedings in this Court.  In the circumstances of this case, having regard to the history of the litigation, I do not consider that any unfairness attends the refusal of that application for adjournment.  I order that the applicant pay the first respondent's costs fixed in the sum of $1000.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 April 2007

The Applicant appeared in person.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 March 2007
Date of Judgment:	27 March 2007